This Temporary Instruction (TI) sets forth the rules for implementing the
December 4, 1989 order of the U.S. District Court for the Southern
District of New York as affirmed by the United States Court of Appeals for
the Second Circuit on June 27, 1990, in State of New
York v. Sullivan. These rules govern the adjudication for New York
State residents of disability claims involving ischemic heart disease, and
certain other kinds of heart disease, when the file contains the results
of an exercise test. These rules also describe the procedures for
readjudicating class members' past claims for benefits and the processing
of class members' claims pending as of February 2, 1994.

Adjudicators throughout the country must be familiar with this TI because
State of New York class members who now reside
outside of New York State must have their cases processed in accordance
with the requirements of the court's order. With respect to the
adjudication of disability claims of New York State residents in which
evidence of a treadmill exercise test is considered, this instruction
replaces any existing instructions that are not consistent with the
district court's order.

On March 11, 1985, the U.S. District Court for the Southern District of
New York certified a class of individuals with cardiovascular impairments
whose benefits “had been or will be” denied based on the
Secretary's application of per se denial rules
pertaining to treadmill exercise tests. On January 12, 1987, the district
court granted plaintiffs' motion for partial summary judgment.
State of New York v. Bowen, 655 F. Supp. 136
(S.D.N.Y. 1987). The court held that the Secretary's policy of giving
priority to the results of treadmill exercise tests resulted in the
exclusion of relevant medical evidence from both the consideration of
whether a claimant's impairment meets or equals the Listings and the
assessment of the claimant's residual functional capacity. The district
court issued a final implementation order on December 4, 1989.
State of New York v. Sullivan, No. 83 Civ. 5903
(RLC) (S.D.N.Y. Dec. 4, 1989). On June 27, 1990, the Second Circuit
affirmed the district court's judgment and order.
State of New York v. Sullivan, 906 F.2d 910 (2d
Cir. 1990). The district court's December 4, 1989 order directs the
Secretary to consider all relevant evidence in evaluating certain
cardiovascular impairments, and requires the readjudication of class
members' claims.

On August 30, 1990, the Secretary petitioned the Second Circuit for
rehearing with a suggestion for rehearing in
banc. On September 28, 1990, the circuit court denied the Secretary's
petition. Accordingly, OHA is issuing these instructions to comply with
the December 4, 1989 district court order as affirmed by the Second
Circuit.

The district court's December 4, 1989 order sets forth detailed
requirements, the pertinent parts of which are summarized below:

The Secretary is permanently enjoined from considering the results of a
treadmill exercise test (TET) to the exclusion of other relevant evidence
and from failing to consider all relevant evidence in assessing the
disability of class members.

The Secretary shall fully develop and consider all relevant evidence,
including newly-obtained evidence, in evaluating the disability claims of
individuals with cardiovascular impairments.

The Secretary shall base his assessment of disability at steps two, three,
four and five of the sequential evaluation process on an overall
evaluation of the claimant's signs, symptoms and laboratory findings, and
treating physicians' opinions.

The Secretary shall consider all signs, symptoms and laboratory findings
demonstrated during treadmill exercise testing, irrespective of whether
the test was completed.

In all cases in which an adjudicator, at any level, proposes to rely on
the results of a TET to deny or terminate benefits, if the record contains
inconsistent or contradictory signs, symptoms, laboratory findings, or
treating physicians' opinions, the adjudicator shall provide a rationale
justifying his reliance on the TET.

The Secretary is permanently enjoined from denying or terminating a
claimant's disability benefits based primarily on the results of a TET
which “shows the capacity for heavy work.” The Secretary
shall base his assessment of disability for these claimants on all the
relevant evidence in the claimant's claims file(s).

The district court's decision of January 12, 1987, and order of December
4, 1989, are reproduced in Attachment 1.

NOTE:

Attachment 13 excerpts guidelines prepared by the Office of Disability for
evaluating State of New York claims at the lower
administrative levels. These guidelines may or may not have direct
applicability to the adjudicative questions arising in claims pending at
the hearing office and Appeals Council levels. Those guidelines are
nevertheless included as an attachment to provide information on how
claims are developed and decided at the Disability Determination Service
(DDS) level and because, in some instances, they may help illuminate a
more general principle that also applies at the OHA level or provide
guidance for developing and deciding disability claims involving ischemic
heart disease and certain other kinds of heart disease. OHA decision
makers are reminded that they must develop and consider all relevant
evidence.

On March 11, 1985, the district court certified a class consisting of:

"All New York State residents with cardiovascular impairments whose
applications or eligibility for SSDI or SSI disability benefits have been
or will be denied or terminated by the application of
per se denial rules on or after June 1,
1980."

The court further certified a subclass (henceforth referred to as the
"State of New York class“ or ”class")
of individuals from the above class consisting of those:

"Who have ischemic heart disease, hypertensive vascular disease,
myocardiopathies, or rheumatic or syphilitic heart disease and whose
disability benefits have been or will be denied or terminated based on the
application of per se denial rules pertaining to
treadmill exercise tests."

For purposes of implementing the court's December 4, 1989 order, the
portion of the retroactive class entitled to receive notice consists of
individuals:

whose title II or title XVI disability claims (including CDB, DWB, and SSI
child) were: 1) denied or ceased at steps three, four, or five of the
sequential evaluation process (including the corresponding medical
improvement sequential evaluation process steps) at any level between June
1, 1980, and February 1, 1987; 2) coded “170” and denied or
ceased at steps three, four, or five of the sequential evaluation process
(including the corresponding medical improvement sequential evaluation
process steps) from February 1, 1987, to February 2, 1994; 3) not coded
“170,” but denied or ceased at steps three, four, or five of
the sequential evaluation process (including the corresponding medical
improvement sequential evaluation process steps) from February 1, 1987, to
February 2, 1994 and who have been identified by the New York State
Office of Disability Determinations to have had a TET; or 4) denied at
step two between December 4, 1989, and February 2, 1994; and

who had ischemic heart disease, hypertensive vascular disease,
myocardiopathies, or rheumatic or syphilitic heart disease; and

whose denial or cessation was based on an assessment of disability that
considered the results of a TET; and

who resided in New York State at the time of the denial or cessation
determination(s) which forms the basis for class membership.

The retroactive class entitled to readjudication generally consists of
individuals who self-identify and request to have their claims reviewed
under the terms of the district court's December 4, 1989 order, as well as
those who respond to notices informing them of their right to
readjudication. However, because the scope of the class entitled to
readjudication relief effectively closes with the date of implementation
of Agency instructions, individuals who receive an initial disability
determination after February 2, 1994 — the date that training on the
implementation instructions was completed in New York — are not
class members and will not be entitled to readjudication.

NOTE:

Pursuant to Part VI.B.1. below, individuals determined to be class
members who have claims pending at the hearing office level must be
offered a supplemental hearing. Similarly, pursuant to Part
VI.B.2. below, individuals determined to be class members who have
claims pending before the Appeals Council are also entitled to a
supplemental hearing.

Current claims must be processed according to these instructions and the
injunction provisions of the district court's December 4 order.

For the following three categories of individuals, current claims must be
screened for class membership (See Part V.D. below) and, as
appropriate, processed accordingly (See Part VI.B. below).

OHA Identified Cases — Individuals entitled to receive
notice who have claims pending at the OHA level are deemed to have
requested relief under the district court's order. They are members of
the retroactive class by virtue of having received a determination from
DDS on or before February 2, 1994. Actual notice is not required.

Self Identified Cases — Individuals who self-identify as a
potential State of New York class member have
requested relief under the district court's order.

Alerted Cases — Individuals who respond to notices informing
them of their right to readjudication have requested relief under the
district court's order.

However, no other special class membership screening or identification is
required for current claims.

NOTE:

Non-medical denials and cessations are excluded from the retroactive
class.

Membership in another class does not preclude membership in the
State of New York class.

The word “determination,” as used in this TI, includes both
determinations made by the DDS and decisions made by an Administrative Law
Judge or the Appeals Council.

For purposes of this TI, a current claim is defined as a claim that is
still pending, or not otherwise administratively final, i.e., still within
the appeal period, at the time action with respect to it is being
considered. This includes claims with:

A hearing decision issued on or before February 2, 1994,

For which the appeals period had not expired as of February 2, 1994,

And the claimant perfects an appeal after February 2, 1994.

A federal court affirmation of an administrative determination rendered
during the time period at issue in this class action will not affect a
class member's right to relief under the district court's December 4
order.

Based on the foregoing class definition, SSA Central Office identified
potential class members by computer run. In a mailing on May 17, 1993, SSA
mailed notices to individuals in the retroactive class who were entitled
to receive notices as described above in Part IV. The court has
ordered SSA to use every good faith effort to complete screening and
commence readjudication within a 24-month period.

Some potential State of New York class members
had already requested relief in another class action, and thus SSA
treated them as having already requested State of
New York relief and did not send them separate
State of New York notices. SSA will conduct
multiple mailings.

Potential class members will have 120 days from the date of receipt of the
notice to request a State of New York class
membership determination and review by returning a reply form provided for
this purpose. “Good cause” for missing the 120-day response
deadline may be established and is provided for in the court's order. The
order also provides that potential class members may demonstrate that they
are responding within 120 days of their actual receipt of the notice. In
addition, individuals may request relief at any field office, DDS office
or OHA office, and may do so even without using the reply form. SSA
Central Office will coordinate further efforts, as necessary, to locate
the “undeliverables.”

C. Central
Office Issuance of “Alerts” and Transfer of Files to
Screening Component

SSA Central Office will generate potential class membership
“alerts” on a monthly basis, in the order in which reply
forms, and other requests for relief, are received. In general, the Office
of Disability and International Operations (ODIO) or the program service
centers (PSCs) will associate the alerts with any inactive folders and (1)
screen for class membership or (2) forward them to OHA for screening if
the most recent denial/cessation decision in the
State of New York period was made at the OHA
level (see D. below). If ODIO or the PSCs determine that a
current claim is located in OHA (pending in the hearing office or
Headquarters, or stored at Headquarters), they will forward the alert,
along with any prior claim folder(s) not in OHA's possession, to OHA. All
OHA jurisdiction alerts, and related prior claim folders, will be sent to
the Office of Civil Actions (OCA), Division I, at the following
address:

Office of Hearings and Appeals Office of Civil Actions, Division I
5107 Leesburg PikeFalls Church, VA 22041-3200 ATTN:
State of New York Screening Unit Suite
601

NOTE:

In general, ODIO or the PSCs will coordinate any necessary reconstruction
of prior claim folders.

A claim folder will be considered lost if it cannot be located within 120
days of the date the file search is initiated.

In general, cases will be screened by ODIO or PSC, or OHA. The
readjudicating component will be determined by the level of the most
recent final administrative determination that makes the claimant a class
member.

NOTE:

With limited exceptions, Administrative Law Judges will readjudicate class
member claims last adjudicated by the Appeals Council.

Pre-screening Actions

Current claim Pending at the OHA Level as of February 2, 1994, No
Determination Yet Issued

Class member claims pending at the OHA level as of February 2, 1994 must
be adjudicated in accordance with these instructions and the
State of New York injunction provisions. These
claims are deemed to be the subject of a request for retroactive class
relief. The pending claim must be formally screened for class membership,
at the level at which the case is pending, in accordance with Part
V.D.2. Claims screened-in as class member claims must be processed in
accordance with Part VI.B.

Current Claim Pending at the OHA level; Claimant Received a Determination
Issued After February 2, 1994; No Alert; No Self-Identification or Request
for Relief under State of New York

The current claim should be adjudicated or reviewed in accordance with the
State of New York injunction provisions;
however, no other special processing is required.

No class membership screening, identification, or reporting is
necessary.

Current Claim Pending at the OHA level; No Alert; but Claimant has
Self-Identified as a Potential State of New York
Class Member and Seeks Relief Under the Provisions of the District Court's
December 4 Order

The current claim must be formally screened for class membership, at the
level at which the case is pending, in accordance with Part V.D.2.
Claims screened-in as class member claims must be processed in accordance
with Part VI.B.

NOTE:

If claims in this category have already been screened in accordance with
Part V.D.1.a. above, i.e., a claim pending at the OHA level as of
February 2, 1994, no additional screening action would be necessary.

Current Claim Pending at the OHA level; Alert Received; No Prior
State of New York Claim(s)

If OCA determines that the current claim is pending in a hearing office,
OCA will forward the alert to the hearing office for screening. (See
Attachment 2.)

If OCA determines that a current claim is pending before the Appeals
Council, OCA will forward the alert to the appropriate OAO branch for
screening. (See Attachment 2.)

If OCA determines that the current claim folder is in an OAO branch
minidocket or Dockets and Files Branch (DFB), OCA will request the folder,
associate it with the alert, and perform the screening.

If OCA is unable to locate the current claim folder within OHA, OCA will
broaden its claim file search and arrange for folder retrieval, alert
transfer or folder reconstruction as necessary.

Exception:

OCA will arrange for future folder retrieval but will not immediately
retrieve any folder for any claim in which a favorable decision has been
authorized, but not yet effectuated. In such instances the current claim
will first be processed for payment before readjudication. After payment
is made on any partially favorable decision, the effectuating component
will send the folder to OCA to coordinate any action necessary for
readjudication.

If OCA determines that a current claim is pending in court, it will notify
the Office of the General Counsel (OGC) for coordination of the claimant
option described in Part VI.C.3.b. below.

NOTE:

If claims in this category have already been screened in accordance with
Part V.D.1.a. above, i.e., a claim pending at the OHA level as of
February 2, 1994, no additional screening action would be necessary.

Current Claim Pending at the OHA level; Alert Received; Prior (Inactive)
Potential State of New York Claim(s)
Associated

If OCA determines that the current claim is pending in a hearing office,
OCA will forward the alert and the prior claim folder(s) to the hearing
office for screening. (See Attachment 2.)

If OCA determines that a current claim is pending before the Appeals
Council, OCA will forward the alert and the prior claim folder(s) to the
appropriate OAO branch for screening. (See Attachment 2.)

If OCA determines that the current claim folder is in an OAO branch
minidocket or DFB, OCA will request the folder, associate it with the
alert and prior claim folder(s), and perform the screening.

If OCA is unable to locate the current claim folder within OHA, OCA will
broaden its claim file search and arrange for folder retrieval, alert
transfer or folder reconstruction as necessary.

Exception:

OCA will arrange for future folder retrieval but will not immediately
retrieve any folder for any claim in which a favorable decision has been
authorized, but not yet effectuated. In such instances the current claim
will first be processed for payment before readjudication. After payment
is made on any partially favorable decision, the effectuating component
will send the folder to OCA to coordinate action necessary for
readjudication.

If OCA determines that a current claim is pending in court, it will notify
the Office of the General Counsel (OGC) for coordination of the claimant
option described in Part VI.C.3.b. below.

NOTE:

If claims in this category have already been screened in accordance with
Part V.D.1.a. above, i.e., a claim pending at the OHA level as of
February 2, 1994, no additional screening action would be necessary.

No Current Claim Pending at the OHA level; Alert Received; Prior
State of New York Claim(s) Only

If there is no current claim pending, and an Administrative Law Judge or
the Appeals Council made the most recent final determination that makes
the claimant a potential class member, OCA will perform the
State of New York class membership screening.

Screening

The screening component must associate the alert, if any, and any prior
claim folder(s), with the claim folder(s) in its possession. The screening
component will then complete the screening sheet. (See Attachment 3.)

NOTE:

All cases requiring class membership screening should be associated with
an alert, except for those cases pending at the OHA level as of February
2, 1994, and those cases in which potential class members self-identify
and seek State of New York court-ordered
relief.

The individual performing the screening must place a copy of the screening
sheet in the claim folder on the top right side of the file and forward
the original to:

If the hearing office or OAO branch receives an alert only or an alert
associated with prior claim folder(s) for screening, and no longer has the
current claim folder, it will return the alert and prior claim folder(s)
to OCA for their further efforts to locate the current claim folder or to
arrange for a transfer of jurisdiction.

Within 30 days of a determination that an individual is not entitled to
relief as a class member, the hearing office or Headquarters staff must
provide the individual and representative, if any, notice of nonclass
membership (Attachment 4), and must place a copy of the notice in the
claim folder.

NOTE:

In cases involving a current claim, screeners may need to modify the
notice of nonclass membership to fit the circumstances and posture of the
case.

An individual who has been determined “not entitled to relief as a
class member” may dispute the determination, either directly or
through legal services. The notice of nonclass membership explains how the
individual may do this.

On completion of the screening component's actions, nonclass member claim
folders must be retained for a 65-day hold period. (See Attachment 5.)

Cases Determined to be Class Members

Within 30 days of a determination that an individual is a class member,
the hearing office or Headquarters staff must mail the individual and
representative, if any, notice of class membership (Attachment 6) and must
place a copy of the notice in the claim folder. See Part VI.
below for adjudication instructions.

NOTE:

In cases involving a current claim, the notice of class membership may
need to be modified to fit the circumstances and posture of the case.

As noted in Parts IV. and V.D.1., current claims must be processed
in accordance with these instructions and the prospective injunction
provisions of the district court's December 4 order.

B. Processing
and Adjudicating Class Member Current Claims; No Class Member Prior
Claims

Hearing Office

After a determination of class membership in accordance with Part
V. above, in conjunction with an alert, self-identification, or
because the claim was pending at the OHA level as of February 2, 1994,
the class member claim must be adjudicated in accordance with the guiding
principles set forth in Part III. above. If the claimant is not
formally determined (i.e., pursuant to a formal screening determination)
to be a State of New York class member until
after a hearing has been held, the claimant must be offered the
opportunity for a supplemental hearing on the State
of New York issues, unless the Administrative Law Judge is prepared
to issue a fully favorable decision. The claimant must also be offered
the opportunity for a hearing if the claimant previously waived the right
to an oral hearing, unless the Administrative Law Judge is prepared to
issue a fully favorable decision.

For class action reporting purposes, the hearing office must send copies
of any decision issued in accordance with this TI to:

Office of Hearings and AppealsOffice of Civil ActionsDivision of
Litigation Analysis and Implementation5107 Leesburg PikeFalls
Church, VA 22041-3200ATTN: State of New York
CoordinatorSuite 702

and
Litigation StaffOffice of the Deputy Commissioner for
Programs3-K-26 Operations6401 Security BoulevardBaltimore,
Maryland 21235ATTN: State of New York
Coordinator

For current claims, hearing offices need only forward copies of decisions
in accordance with the foregoing instruction in cases in which the
claimant has been formally determined to be a State
of New York class member as a result of formal screening.

Headquarters

After a determination of class membership in accordance with Part
V. above, in conjunction with an alert, self-identification, or
because the claim was pending at the OHA level as of February 2, 1994,
the class member claim must be processed in accordance with the guiding
principles set forth in Part III. above.

OAO/Appeals Council Action

If the claimant is first formally determined to be a
State of New York class member through OAO
screening in conjunction with a pending request for review or pending
request for reopening, the Appeals Council will remand his or her claim
to an Administrative Law Judge for a supplemental hearing on the
State of New York issues, unless the Appeals
Council intends to issue a fully favorable decision. If the Appeals
Council issues a decision, copies of the decision must be provided as
described in B.1. above.

If the claimant was previously formally determined to be a
State of New York class member at the hearing
office level, the Appeals Council must consider in conjunction with a
pending request for review or pending request for reopening whether the
claimant was appropriately offered the opportunity for a supplemental
hearing on the State of New York issues. If the
hearing office did not appropriately offer the opportunity for a
supplemental hearing on the State of New York
issues, the Appeals Council will remand the claim to an Administrative Law
Judge for a supplemental hearing on the State of New
York issues, unless the Appeals Council intends to issue a fully
favorable decision.

OCA Action

If the claimant is first formally determined to be a
State of New York class member through OCA
screening of a claim folder stored pending expiration of an appeals
period, the Appeals Council will remand the claim as described in a.
above. If the claimant is first formally determined to be a class member
through OCA screening of the transcript or claim folder of a case pending
in court, the claimant will be offered the option described in C.3.b.
below.

C. Processing
and Adjudicating Class Member Prior and Current Claims (Consolidation
Procedures)

General

If a class member has a current claim pending at any administrative level,
all other State of New York claims may be
consolidated with the current claim at the level at which the current
claim is pending, if the criteria contained in this section C. are
met.

EXCEPTION:

In general, consolidation will not occur at the Appeals Council Level (See
Part VI.C.3.a. below for more specific instructions in this
regard).

NOTE:

To the extent that inconsistent procedures for the handling of class
members' claims are dictated by these consolidation procedures and by the
general routing and screening procedures set forth in Part V.B.,
the consolidation procedures take precedence. In addition, unless
formally screened and determined to be a class member, nothing in the
order shall be construed to require the remand of an administrative
appeal or request for judicial review.

Hearing Office

If a current claim is pending in the hearing office and there is a prior
State of New York claim as well, the prior claim
and the current claim will be consolidated at the hearing level if there
is a common issue. However, the claims will not be consolidated if the
claimant objects to consolidation.

The Administrative Law Judge must:

Review the claims to determine if a common issue exists.

If a common issue does not exist:

The hearing office must determine whether the prior
State of New York claim is OHA or DDS
jurisdiction. (See Parts VI.D. and F. below for guidance in
determining jurisdiction.)

If the prior claim is also OHA jurisdiction, the hearing office shall
schedule separate hearings for each claim and the ALJ shall issue separate
decisions.

If the prior claim is DDS jurisdiction, the hearing office will route the
prior claim to the servicing DDS for any necessary
State of New York readjudication action
(Attachment 7). The Administrative Law Judge will then take the action
necessary to complete the record and issue a decision on the current
claim.

If a common issue exists:

The Administrative Law Judge must follow the steps below:

Send a notice of hearing pursuant to
20 CFR §§
404.946(b)(2) and/or 416.1446(b)(2), indicating that the
Administrative Law Judge will review a new issue.

Inform the claimant in the notice that the Administrative Law Judge will:
1) consider whether the claimant was disabled at any time during the
period considered in the prior determination(s) that is subject to
readjudication, and 2) consider disability from the earliest alleged onset
date through the effective life of the current application (date last
insured or the date of the current administrative determination, as
appropriate).

Provide the claimant with the opportunity to object to the proposed
consolidation. (See Attachment 12.)

If the claimant objects to the consolidation, the hearing office shall
forward the prior State of New York claim (even
if it is an OHA jurisdiction case) to the servicing DDS for any necessary
readjudication action (Attachment 7). The Administrative Law Judge will
then take the action necessary to complete the record and issue a decision
on the current claim.

If the claimant does not object to the consolidation, the Administrative
Law Judge shall:

Proceed with consolidated hearing proceedings or offer a supplemental
hearing if a hearing has already been held and the Administrative Law
Judge is not prepared to issue a fully favorable decision which includes
the State of New York time period.

Issue one decision which addresses both the issues raised by the request
for hearing in the current claim and those raised by the
State of New York readjudication.

Include in the notice of decision, if the decision is less than fully
favorable, a statement that the claimant has the right to appeal the
decision and/or reapply for benefits if he believes that his condition has
worsened or will worsen. The notice must also include a statement
explaining that filing a new application is not the same as appealing the
decision because the claimant might lose benefits if he/she files a new
application instead of pursuing an appeal.

For class action reporting purposes, the hearing office must send copies
of the decision to the addresses shown in Part VI.B.1. above.

OHA Headquarters

OAO/Appeals Council Action

Consolidation will not occur at the Appeals Council level if a current
claim is pending, except for consolidation in the circumstances identified
under the second type of Appeals Council action described below, i.e.,
the Appeals Council intends to issue a favorable decision on the current
claim and no State of New York issues will
remain.

The OAO branch will associate the alert and prior claim folders with the
current claim folder and attach a flag (Attachment 8) to the outside of
the combined folders.

Appeals Council action on a prior class member claim will occur as
follows, based on the nature of the action taken on the current claim:

The Appeals Council intends to dismiss, deny review, or issue a denial
decision on the current claim

The Appeals Council will process the current claim using standard
procedures unless the claimant has been formally determined to be
a State of New York class member pursuant to
Part V. in connection with the current claim.

If the claimant has been formally determined to be a
State of New York class member in connection
with the current claim, the Appeals Council will process the claim in
accordance with Part VI.B.2.a. above. The remand order must
direct the Administrative Law Judge to follow the
State of New York consolidation procedures. (See
Part VI.C.2. above.)

If the claimant has not been formally determined to be a
State of New York class member in connection
with the current claim, the Appeals Council should proceed with its
intended action and OAO must attach a flag (Attachment 9) to the combined
folders. If no civil action is filed, after expiration of the retention
period, OAO must ship the combined folders to the appropriate
readjudicating component (either a hearing office or DDS, as determined
by other provisions of this instruction) for State
of New York review of the prior class member claim.

The Appeals Council intends to issue a favorable decision on the current
claim — no State of New York issues will
remain

If the Appeals Council intends to issue a favorable decision on a current
claim, and this decision will be fully favorable with respect to the prior
State of New York claim, the Council should
proceed with its intended action.

The Council's decision must advise the claimant that it includes the
State of New York readjudication of the prior
claim.

For class action reporting purposes, the Appeals Council must send copies
of the decision to the addresses shown in Part VI.B.1. above.

The Appeals Council intends to issue a favorable decision on the current
claim — State of New York issues will
remain

If the Appeals Council intends to issue a favorable decision on the
current claim which would not be fully favorable with respect to the prior
State of New York claim, the Council should
proceed with its intended action. OAO must include the following language
on the transmittal sheet which forwards the case for effectuation:

"State of New York readjudication needed —
following effectuation, forward the attached combined folders to (insert
address of the readjudicating component — New York State DDS,
servicing DDS address if claimant now resides outside New York State, or
hearing office)."

The Appeals Council intends to remand the current claim to an
Administrative Law Judge

If the Appeals Council intends to remand the current claim to an
Administrative Law Judge, it should proceed with its intended action.

The remand order must direct the Administrative Law Judge to follow the
State of New York consolidation procedures. (See
Part VI.C.2. above.)

OCA/Court Level Action

If a current claim is pending at the district or circuit court level, the
Assistant U.S. Attorney will offer the claimant the option of receiving
administrative relief as a State of New York
class member or proceeding with his individual court case. (The Assistant
U.S. Attorney will provide each such class member with a notice
explaining this option.)

If the claimant elects administrative relief as a
State of New York class member, following remand
from the court, OCA Division I will route the alert and all folders for
both the current and prior claim(s) to the hearing office. OCA will
direct the Administrative Law Judge to follow the
State of New York consolidation procedures. (See
Part VI.C.2. above.)

If the claimant chooses to remain in court with his current claim, OCA
Division I will route the alert and prior class member claim folder(s) to
the appropriate readjudicating component (either a hearing office or DDS,
as determined by other provisions of this instruction) for
State of New York readjudication. (See Attachment
10.) If a hearing office is the readjudicating component, the
Administrative Law Judge shall issue a recommended decision. (See
HALLEXI-2-8-15.)

NOTE:

If an individual decides to proceed separately with his or her individual
court case, this decision will not affect his or her right as a
State of New York class member to have any other
State of New York claim(s) adjudicated.

D. Processing
and Adjudicating Class Member Prior Claims; No Current Claim Pending

If there is no current claim pending, and an Administrative Law Judge or
the Appeals Council made a decision on the most recent prior claim that
forms the basis for class membership, an Administrative Law Judge will
perform the State of New York readjudication.

After screening and a determination of class membership, OCA Division I
will route the alert and claim folder(s) to the hearing office for
State of New York readjudication. (See Attachment
11.)

NOTE:

If a class member has more than one administrative determination requiring
readjudication, the claims will be consolidated and readjudicated at the
level of adjudication of the most recent administrative determination
which makes the individual a State of New York
class member.

Class members retain all rights to further administrative and judicial
review following readjudication.

The period to be adjudicated will vary, depending on whether the claimant
has a current claim pending and on whether a cessation is involved, as
follows:

No Current Claim or Consolidation

Prior Claim — Initial Entitlement

For claimants who are class members by virtue of a prior denial, the DDS
or OHA readjudication must consider the period of time at issue in the
administrative determination(s) that forms the basis of the claimant's
class membership. If the DDS or OHA readjudication results in a favorable
determination, the DDS or OHA must also consider, under the medical
improvement review standard, whether the class member's disability
continues through the date of the readjudication (or through the date of
onset of disability established in any allowance on a subsequent
application). OHA or DDS must fully develop the record for the relevant
time period.

Prior Claim — Cessation

For claimants who are class members by virtue of a determination ceasing
disability benefits, the DDS or OHA readjudication must consider
eligibility for benefits from the date benefits were ceased through the
date of the readjudication. The DDS or OHA must apply the medical
improvement review standard and must fully develop the record.

NOTE:

In some cases, the claimant may have received an allowance on a subsequent
claim after a prior claim for initial entitlement was denied or after a
prior award of benefits was ceased. In these cases, in the absence of
evidence to the contrary, SSA adjudicators will assume that the favorable
decision on the subsequent claim was correct and will limit development
and readjudication to the period up to the date of onset established in
connection with the subsequent claim. However, if new evidence submitted
or developed in connection with the State of New
York readjudication raises a question of continuing disability, SSA
adjudicators will not be barred from considering and deciding the issue
under the normal continuing disability review procedures and standard. If
OHA identifies a question of continuing disability in the course of
adjudicating a State of New York claim, it will
not attempt to introduce, develop or decide that issue in connection with
the State of New York adjudication. Instead, OHA
will separately complete its adjudication of the claim(s) that is pending
before it and will then refer the issue of continuing disability to the
appropriate SSA district or branch office for continuing disability
review (CDR) action. Similarly, OHA will not stay its adjudication of a
State of New York claim if a CDR is already
pending. Instead, it will complete its action with respect to the
State of New York readjudication and forward a
copy of the result of its action to the SSA component conducting the CDR
for that component's information.

Prior and Current Claims Consolidated

For class members with a current claim pending that will be consolidated
with the State of New York readjudication of a
prior claim(s), the DDS or OHA adjudication must consider the period from
the earliest alleged onset date through the effective life of the current
application (date last insured or the date of the current administrative
determination, as appropriate).

Unless consolidated at the OHA level pursuant to the above-described
consolidation instructions, DDS will have readjudication responsibility
for class member cases in which DDS made the most recent final
administrative determination that makes the individual a class member.

If no current claim is pending, the DDS will readjudicate at the
reconsideration level and the individual will have the right to appeal
directly to the hearing level. If a current claim and prior claim(s) are
consolidated at DDS, the consolidation will occur at the level of the
current claim (initial or reconsideration). Individuals retain full appeal
rights and will have the right to appeal an adverse determination in
their consolidated claims to the next administrative level
(reconsideration or hearing).

If the claimant files a request for hearing on the readjudicated claim,
the hearing office must advise the claimant, in the notice of hearing, of
the period at issue (See Part E. above) and the right to submit
new evidence relating to that period. The claimant also must be advised,
in the notice of the Administrative Law Judge's decision, of the
opportunity to file a new application if the claimant believes that his
or her alleged impairment(s) became worse after the readjudicated period
or if he or she has a new impairment. The notice must also include a
statement explaining that filing a new application is not the same as
appealing the decision because the claimant might lose benefits if he/she
files a new application instead of pursuing an appeal.

If new evidence is submitted which relates only to the period after the
date ruled through in the State of New York
readjudication and there is no current claim, and the Administrative Law
Judge does not find the claimant disabled as of the ending date of the
readjudicated period, the Administrative Law Judge must not consider the
new evidence in the State of New York decision;
rather, the decision should explain why the new evidence was not
considered and the notice of the State of New
York decision must advise the claimant of the right to file a new
application. Again, the notice must also include a statement explaining
that filing a new application is not the same as appealing the decision
because the claimant might lose benefits if he/she files a new
application instead of pursuing an appeal.

The hearing office should code prior claims into the Hearing Office
Tracking System (HOTS) and the OHA Case Control System (OHA CCS) as
reopenings. If the prior claim is consolidated with a current claim
already pending at the hearing level (See Part VI.C.), it should
not be coded as a separate hearing request. Instead, the hearing type on
the current claim should be changed to a reopening.

To identify class member cases in HOTS, the hearing office must code
“NY” in the “Class Action” field. No special
identification codes will be used in the OHA CCS.

Hearing office personnel should contact their Regional Office. Regional
Office personnel should contact the Division of Field Practices and
Procedures in the Office of the Chief Administrative Law Judge at (703)
305-0022.

THE STATE OF NEW YORK, CESAR PERALES, as Commissioner of the New York State Department of Social Services, THE CITY OF NEW YORK, THE COUNTY OF SUFFOLK, PETER F. COHALAN, as County Executive of the County of Suffolk, ANITA ROMERA, as Commissioner of the Suffolk County Department of Social Services, and WALTHON WHITE, HAYDEE GUZMAN, ANIBAL VILLANUEVA, RAFAEL RIVERA, GLADYS DOMINGUEZ, HECTOR MUNIZ, LUIS DIAZ, CATHRYN GIBBONS, MARIA GONZALEZ, JORGE PEREZ, EDWARDA RIVERA, AND HERMINA GONZALEZ, and all others similarly situated,

Plaintiffs,

OPINION

83 Civ. 5903 (RLC)

- against -

[Field January 13, 1987]

OTIS R. BOWEN, M.D., as Secretary of the United States Department of Health and Human Services, MARTHA McSTEEN, as Commissioner of the Social Security Administration and THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendants.

APPEARANCES

ROBERT ABRAMSAttorney General of the State of New YorkPlaintiff Pro Se andAttorney for Plaintiff Cesar PeralesTwo World Trade CenterNew York, New York 10047

PAUL M. GLICKMANEVELYN M. TENNENBAUMMARLA TEPPERAssistant Attorneys General- Of Counsel -FREDERICK A.O. SCHWARTZ,Corporation CounselAttorney for PlaintiffThe City of New York100 Church StreetNew York, New York 10007

LOIS MAYAssistants Corporation Counsel- Of Counsel -SUFFOLK COUNTY ATTORNEYAttorney for the County ofSuffolk, Peter F. Cohalan,as County Executive of theCounty of Suffolk, andAnita Romao, As Commissionerof the Suffolk County Department of Social ServicesVeterans Memorial HighwayHauppauge, New York, 11788

This class action charges the Secretary of the Department of Health and
Human Services (“the Secretary”)1 with an unlawful policy of
withholding disability benefits. Specifically, plaintiffs allege that by
applying certain per se rules, the Secretary has
denied or terminated Social Security Disability Insurance
(“SSDI”) and Supplemental Security Income (“SSI”)
to individuals disabled by cardiovascular impairments, in violation of
the Social Security Act (“the Act”), 42 U.S.C. 301 et
seq., its implementing regulations, and the due process clause of the
Fifth Amendment. Plaintiffs also allege that defendants' failure to
publish these rules violated the notice and comment provisions of the
Administrative Procedures Act, 5 U.S.C. § 553.

In an earlier opinion, sub non. State of New York v. Heckler, 105
F.R.D. 118 (S.D.N.Y. 1985) (Carter, J.), with which familiarity is
assumed, the court certified a class consisting of:

All New York State residents with cardiovascular impairments whose
applications or eligibility for SSDI or SSI disability benefits have been
or will be denied or terminated by the application of
per se denial rules on or after June 1, 1980.

Id. at 122. The court further certified a subclass of individuals
from the above class consisting of those: Who have ischemic heart
disease, hypertensive vascular disease, myocardiopathies, or rheumatic or
syphilitic heart disease and whose disability benefits have been or will
be denied or terminated based on the application of
per se denial rules pertaining to treadmill
exercise tests.

Id. (footnote omitted). Twelve members of the subclass are joined
as named plaintiffs by the State and City of New York, Suffolk County,
and the New York State and Suffolk County Departments of Social Services.

Plaintiffs have moved for partial summary judgment or alternatively for a
preliminary injunction to forbid the Secretary's use or enforcement of the
allegedly per se rules in disability determinations. Defendants have
cross-moved for partial summary judgment declaring the challenged policy
valid.

BACKGROUND

Disability determinations in New York begin with initial consideration and
reconsideration by an authorized state agency, the Office of Disability
Determinations (“ODD”) of the New York State Department of
Social Services. See 42 U.S.C. §§ 421(a),
1386(a).2 Disappointed claimants may seek federal
administrative review by the Social Security Administration, including a
hearing before an administrative law judge and an appeal to the Appeals
Council. 42 U.S.C. §§ 405(b)(1), 1383(c)(1), see Bowen v.
City of New York, U.S. ___, ___, 106 S. Ct. 2022, 2025 (1986).

At all stages of this administrative process, a five-step sequence is
followed in determining whether a claimant is entitled to SSDI or SSI
benefits. 20 C.F.R.
§§ 404.1520,
416.920 (1986),
see Bowen v. City of New York, supra , ___ U.S. at ___, 106 S. Ct.
at 2025. A claimant triggers the sequence by alleging a disability, that
is, the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected
to last for a continuing period of not less than 12 months.” 42
U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Once triggered, the
sequence in brief is as follows:

(1) A claimant who is presently working is conclusively presumed not
disabled. (2) A non-working claimant is presumed not disabled unless his
impairment or combination of impairments exceeds a threshold level of
severity.3 (3) A non-working claimant with an impairment of at least
threshold severity is conclusively presumed disabled if his impairment
“meets” or “equals” the Listing of Impairments
(the “Listing”), 20 C.F.R. Part 404, Subpt. P, App. 1
(1986).4 (4) A claimant for whom no determination is made in the first
three steps is found not disabled at this step in his residual functional
capacity (“RFC”) enables him to perform the sort of work he
has previously done. (5) If in step 4 a claimant is considered unable to
perform his previous work, he will be found disabled if on the basis of
his RFC, age, education, and work experience he is unable to do any other
substantial work.

The dispute in this case concerns the procedures followed at steps 3, 4
and 5. At step 3, the Listings provide for various medical tests by which
a claimant may meet or equal an enumerated cardiovascular impairment and
thereby conclusively establish disability.

For the subclass members who complain of ischemic heart disease,5
“the primary basis for adjudicating claims” is the results of
the treadmill exercise test. The treadmill test measures a patient's heart
condition based on electrocardiographic responses, changes in blood
pressure, chest pain, and other symptoms, as the individual walks or runs
on a treadmill with progressively greater speed and steeper grade.

The treadmill test need not be the only basis for adjudicating claims,
provided that the claimant can supply evidence of other impairments severe
enough alone or in combination to equal the Listings.6 Affidavit of
Marvin Lachman, Apr. 15, 1986, ¶ 7); Affidavit of Barbara G.
Rodbart, Nov. 15, 1985, ¶ 33-35, Exh. M at 5. Nor can the results of
the test be controlling if they are unreliable or unavailable. Listings
§ 1.00G4. They may be unreliable if the testing does not conform to
an acceptable protocol. Id. § 4.00DG2, or took place more
than a year ago, Affidavit of Marvin Lachman, Apr. 15, 1986, ¶ 6;
Affidavit of Barbara G. Rodbart, Nov. 15, 1985, Exh. H at 3, or if the
claimant's condition has subsequently deteriorated. Listings §
4.00G4. They may be unavailable because performance of the treadmill test
itself poses a significant risk to the claimant's health. Id.
§ 4.00G3.

However, if the claimant has no additional impairments and “if there
is documentation of an acceptable treadmill exercise test,” then
only the results of that test are considered, and other medical reports
such as angiographic, radio-isotopic ventriculographic, or resting
electrocardiographic findings are dismissed as “not
applicable.” Listings §§ 4.00G4, 4.04B, Defendants' Reply
Memorandum at 8; Plaintiffs' Reply Memorandum at 3-5.

If the Secretary finds that a claimant's medical condition does not meet
or equal the Listings so as to conclusively establish disability, the
analysis proceeds to step 4 and, if necessary, step 5. At these steps, the
Secretary considers the claimant's RFC—the range of activities that
he still can do in spite of his impairment.

Treadmill test results continue to be of weighty significance in this
evaluation. Guidelines issued by the Secretary correlate the ability to
perform work at a given level of exertion with electrocardiographic
findings at specific intervals of the treadmill test. Department of Health
and Human Services, Program Operations Manual System
(“POMS”), ¶ DI 00401.590C. An irregular
electrocardiographic response at any interval indicates the simple
presence of a cardiovascular impairment. An individual's ability to work
in spite of the impairment is inferred from the interval at which the
irregular response is first registered. Thus, if a claimant registers an
irregular electrocardiographic response before he reaches five
“METS”7 on the treadmill test (or five times the approximate
oxygen uptake required at rest), his impairment meets the Listing for
ischemic heart disease, and he is presumed unable to work. Listings,
§ 4.04A. However, if an irregularity arises between five and seven
METs, the Secretary assumes that the ability to do light work
“ordinarily would be retained.” POMS, ¶ DI 00401.590C.
If an irregularity is first detected at the interval between seven and ten
METs, the ability to do medium work “ordinarily would be
retained.” Id. If none is detected until after the claimant reaches
ten METs (or if no irregularity is detected at all), the claimants is
apparently deemed able to do heavy work. Affidavit of Marvin B. Lachman,
Apr. 30, 1985, ¶ 32.

The parties appear to disagree on how conclusive the Secretary's
presumption is as to an individual's ability to work at a given level of
exertion. The Secretary's regulations provide that the RFC assessment
“is based on all of the medical evidence we have, including any
other assessments that may have been provided by treating or examining
physicians, consultative physicians, or any other physician designated by
the Secretary.”
20 C.F.R.
§§ 404.1546, 415.946 (1986). Nevertheless, plaintiffs
contend, in practice when a claimant has undergone a valid, up-to-date
treadmill test and alleges only one impairment, no medical evidence apart
from the results of the test are considered in the RFC assessment.8
Defendants assert, by contrast, that in accord with the regulations an
ODD staff physician “must consider the medical findings and results
of any and all diagnostic test in the record as well as any medical
assessment that has been submitted by an examining physician,”
including nuclear test studies, echocardiograms, and arteriography".
Affidavit of Barbara G. Rodbart, Nov. 15, 1985, ¶ 38.

The same reliability and availability that is required of treadmill test
reports used in the Listings analysis also is required for their use in
RFC assessments. Listings § 4.00C. Thus, if a treadmill report is
unacceptable or unavailable, other medical evidence may be considered in
the assessment. Likewise, evidence of impairments over and beyond ischemic
heart disease is again considered. For claimants alleging ischemic heart
disease as their only Impairment, however, testimony given in depositions
supports the view that acceptable treadmill results do take exclusive
precedence in RFC assessments. Dr. Ralph Weber, a consultant in cardiology
for the Social Security Administration, testified that the functional
abilities of such a claimant will never be found restricted beyond what is
directed by the POMS guidelines. Medical evidence (such as an angiogram)
to the contrary cannot serve to rebut the directed result.9 Dr. Marvin
Bierenbaum, at the time of his deposition the Social Security
Administration's Regional Medical Advisor for the New York Region,
similarly testified that the treadmill test (alternatively referred to as
the screen test) takes precedence over other medical tests. Again,
angiograms and other tests tending to a contrary result are of no
effect.10

To summarize, plaintiffs argue that when a claimant alleging one
impairment has an acceptable treadmill report in his file, the Secretary
does not allow consideration of other medical evidence for purposes of
either the Listings analysis or the RFC assessment. Defendants cite
regulations calling for the consideration of all relevant medical evidence
in both evaluations. However, they acknowledge that when acceptable
treadmill results are on file, the Listings analysis proceeds according to
criteria exclusively applicable to those results. In addition, two of the
Secretary's medical experts have agreed that except where multiple
impairments are alleged, acceptable treadmill test findings alone are
determinative in RFC assessments.

DISCUSSION

Congress has entrusted the Secretary with exceptionally broad authority to
prescribe standards for disability adjudication and the court may
intervene only if the Secretary's standard exceeds his broad authority or
is arbitrary and capricious. Heckler v. Campell, 461 U.S. 458, 466
(1983). Of course, the Secretary may exceed his authority not only by
promulgating illegal regulations, see Dixon v.
Heckler, 785 F.2d 1102, 1106 (2d Cir. 1986), but also by enforcing an
illegal de facto policy not encompassed or
authorized by his own regulations. See Stieberger v. Bowen, 615 P.
Supp. 1315, 1349 (S.D.N.Y. 1985) (Sand, J.), vacated on other
grounds, 801 F.2d 29 (2d Cir. 1986). Under the circumstances of this
case, the Secretary's challenged policy does conflict with the provisions
of the Social Security Act. Because the conflict in dispositive of the
motions before the court, plaintiffs' contention that the policy violates
the Fifth Amendment need not be considered. See Califano v.
Yamasaki, 442 U.S. 682, 692 (1979).

Similarly, the court need not base its holding on violation of the
Administrative Procedures Act, 5 U.S.C. § 553, resulting from the
Secretary's failure to publish the policy in the Federal Register. That
issue was raised but not entirely resolved in the court's previous
opinion. State of New York v. Heckler, supra, 105 F.R.D. at
120-22. While the court finds that a sufficient showing of illegal
non-publication has been made for jurisdictional purposes, the decision
whether the Secretary's policy is valid does not otherwise depend on any
violation of publication requirements.

The Act provides generally that:

An individual ... shall be determined to be under a disability only if his
physical or mental impairment or impairments are of such severity that he
is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any kind of substantial
gainful work....

In making any determination with respect to whether an individual is under
a disability or continues to be under a disability, the Secretary shall
consider all evidence available in such individual's case record, and
shall develop a complete medical history of at least the preceding twelve
months for any case in which a determination is made that the individual
is not under disability. In making any determination the Secretary shall
make every reasonable effort to obtain from the individuals' treating
physician (or other treating health care provider) all medical evidence,
including diagnostic tests, necessary in order to properly make such
determination, prior to evaluating medical evidence obtained from any
other source on a consultative basis. 42 U.S.C. § 423(d) (5)(N),
Section 2(c) likewise provides in part:

Any determination under this paragraph shall be made on the basis of all
the evidence available in the individual's case file, including new
evidence concerning the individual's prior or current condition which is
presented by the individual or secured by the Secretary. Any determination
made under this paragraph shall be made on the basis of the weight of the
evidence and on a neutral basis with regard to the individual's
condition.....

42 U.S.C. § 1382c(a)(5).

Congress's command to hear all of the evidence is not new. The amendments
apply, with certain exceptions, only to those subclass members for whom
the Secretary made or will make disability determinations on or after
October 9, 1984. Pub. L. No. 98-460, §§ 2(d), 2(e). However, the
basic rule of evidence applicable to administrative agencies generally is
that “[a]ny oral or documentary evidence may be received
and an agency is to exclude evidence only when it is ”irrelevant
immaterial, or unduly repetitious.“ 5 U.S.C. [sect ] 556(d).
”A party is entitled to present his case or defend by oral or
documentary evidence, to submit rebuttal evidence, and to conduct such
cross-examination as may be required for a full and true disclosure of the
facts. Id. The Social Security Act, since well before the recent
amendments, likewise has called for “individualized determinations
based on evidence adduced at a hearing.” Heckler v. Campbell,
supra, 461 U.S. at 467 (citing 42 U.S.C. §§ 405(b) (1976
ed., Supp. V), 423 (d)(2)(A), Finally, the Secretary's own stated rule
since at least as early as 1965 also shows a preference for full and true
disclosure of the facts: “Whether or not an impairment in a
particular case ... constitutes a disability .... is determined from all
the facts of that case.”
20 C.F.R. §
404.1520(a) (1965), quoted in Chico v. Schweiker, 710 F.2d
947, 949 (2d Cir. 1983).

Listings Analysis

It therefore comes as a surprise that once acceptable treadmill results
are in the file of a claimant with ischemic heart disease, they control
the Listings analysis to the exclusion of other medical evidence.
Defendants assert that the Listings provide several approaches for
evaluation of ischemic heart disease, and that absent an acceptable
treadmill test report, other medical evidence may be considered under the
criteria applicable to it, set forth in sections 4.04B and 4.04C of the
Listings. Correlatively, however, when an acceptable treadmill test is
available, the only approach permitted under the Listings is the criteria
in section 4.04A, applicable exclusively to treadmill results.

Defendants argue that there is substantial medical support for the use of
the treadmill test in adjudicating claims of cardiovascular impairments.
No doubt there is support for the test, though plaintiffs have
significantly undercut defendants' representation of how accurate the test
is.11 The issue, however, is not the test's accuracy, but whether there
is any justification for supplanting admittedly material and objective
medical findings with the results of a single test. Because defendants
concede that the treadmill test is often inaccurate, see note 11
supra, they forego the argument that alternative medical tests
are excludable as unduly repetitious or superfluous. Where no test is
perfect, in other words, every test that is helpful ought to be
considered.

The Secretary's reliance on treadmill results in certain cases would be
perfectly appropriate if the test measured a subject matter (such as jobs
in the national economy) susceptible of resolution within a single
rulemaking proceeding. See, e.g., Heckler v. Campbell, supra, 461
U.S. at 467-68 (1983). The determination of a claimant's medical
condition, by contrast, is necessarily among the most individualized,
case-by-case decisions that the Secretary makes. Id. at 467
(citing 42 U.S.C. § 423(d)(2)(A). To ignore all medical findings
other than the treadmill test results deprives the claimant of the
opportunity to prove his “particular limitations” not
reflected in the latter results. See Heckler v. Campbell, supra,
461 U.S. at 462 n.5, 467 n.11. As the claimant bears the burden of making
a prima facie case of disability, 42 U.S.C. § 423(d)(5),
1382c(a)(3), it is unfair thus to take away his means of proving his
case.

Exclusion of medical evidence has other impermissible ramifications.
Findings and conclusions of a treating physician cannot be given the
weighty consideration they are due, see Stieberger v. Bowen,801
F.2d 29, 31 (2d Cir. 1986), when treadmill results displace them. A
claimant's subjective complaints of pain, with or without corroborating
objective findings, also cannot be considered as is required. See
Mimms v. Heckler, 750 F.2d 180, 185-86 (2d Cir. 1984).

In short, an administrative adjudicator cannot be expected to reach an
independent judgment in applying the Listings when presented with only
some of the facts.12 As there is no dispute about the exclusion of much
medical evidence from the Listings analysis when an acceptable treadmill
report is available, plaintiffs are entitled to judgment as a matter of
law, See Empire Electronics Co. v. United States, 311 F.2d 175,
179 (2d Cir. 1962), Rule 56(c), F.R. Civ. P.

Residual Functional Capacity

The exclusion of relevant medical evidence from the RFC evaluation at
steps 4 and 5, if established, would also entitle plaintiffs to summary
judgment for essentially the reasons set out above. The RFC assessment,
like the determination whether a claimant's impairment meets or equals the
Listings, is of necessity highly individualized. See Bowen v. City of
New York, supra, ____ U.S. at ____. 106 S. Ct. at 2027. In other
words, the claimant must be given the chance to show that the treadmill
test should not apply to him, and to rebut the test results with other
medical evidence of his particular limitations. See Heckler v.
Campbell, supra, 461 U.S. at 462 n.5, 467 & n.11. This other
evidence means any facts relevant to the claimant's own functional
abilities, including but not limited to treating physicians' opinions and
the claimant's subjective complaints of pain. Simply put, the claimant's
RFC must be evaluated individually, not bureaucratically. See Bowen
v. City of New York, supra, ___ U.S. at ____, 106 S. St. at 2027
see also Cabral v. Heckler, 604 F. Supp. 831, 835 (M.D. Cal.
1984).

Defendants argue that the treadmill test is the only commonly available
test that can provide information directly pertinent to RFC assessments.
The answer to this contention, to the extent it remains unaddressed, is
that claimants have the right to present pertinent evidence indirectly as
well as directly. Much medical evidence, which defendants imply is not
directly pertinent, reflects a diagnosis for the presence of ischemic
heart disease rather than a measure of the “graded functional
loss” resulting from the disease. Defendant's Reply Memorandum at
13-14. No one argues, however, that diagnostic evidence of heart disease
is not probative of a claimant's capacity to function and to work. Indeed,
certain medical findings such as an angiogram may by themselves establish
heart disease of such severity that under the Listings analysis a
claimant's disability is conclusive. Yet if the claimant's file includes
treadmill results indicating a capacity to work, and if such results are
in fact given exclusive precedence, other medical findings are effectively
ignored no matter how severe they reflect an impairment to be. Such an
arbitrary outcome is inconsistent with the individualized scheme of
disability adjudication that the Social Security Act requires. See
Heckler v. Campbell, supra, 461 U.S. at 467, Cabral v.
Heckler, 604 F. Supp. At 835.13

As already noted, however, the parties have taken sides in a debate
matching the purport of the Secretary's regulations against the testimony
of his medical experts. If the debate raises a genuine issue as to
some material fact, partial summary judgment for either party will be
improper and resolution of the debate will have to await trial. Rule
56(c), F.R. Civ. P., see Empire Electronics Co. supra, 311 F. 2J at
180-81.

At the same time, “there is no issue for trial unless there is
sufficient evidence favoring the nonmoving party for a jury to return a
verdict for that party.” Anderson v. Liberty Lobby, Inc.,
U.S. , , 106 B. Ct. 2505, 2511 (1986). The evidence must be significantly
probative, not just colorable, id., because the summary judgment
rule is aimed at isolating and disposing of factually unsupported claims
or defenses. Celotex Corp. v. Catrett, _____ U.S. ______,
_______, 106 S. Ct. 2548, 2553 (1986).

In the instant case, plaintiff has carried its initial burden — as a
party moving for partial summary judgment — of informing the court
of the basis for the motion and identifying those portions of the
affidavits, depositions, and like materials which demonstrate the absence
of a genuine issue of material fact. See id, Specifically,
plaintiffs point to the deposition testimony of Drs. Weber and Bierenbaum
as indicative of an undisputed policy in fact of precedence for treadmill
results and exclusion of other medical evidence from RFC assessments.
See notes 9-10 supra.

At this point, it is incumbent upon defendants to come forth, by
affidavits or other discovery materials, with “specific facts
showing that there is a genuine issue for trial.”
Celotex Corp. v. Catrett, supra, _____ U.S. at
______, 106 S. Ct. at 2553 (quoting Rule 56(e), F.R. Civ. P.). Defendants
obviously have alleged that, contrary to plaintiffs' contentions, the
Secretary's policy for RFC assessments is consistent with what the
regulations require. They so allege in their pleadings and in affidavits
of Barbara G. Rodbart, the Social Security Administration's Director of
Disability Programs for the New York Region.

However, rather than designating “specific facts” to
substantiate their version of the Secretary's policy, defendants'
assertions in their pleadings and affidavits are based almost entirely on
the rules themselves; that is, regulations and other guidelines such as
the POMS and Social Security rulings, which reiterate the regulations.
Significantly, defendants neither attempt to impeach nor address the
deposition testimony of the Secretary's medical experts, Drs. Weber and
Bierenhaum. Rather, they rely on interpretations of the Secretary's rules
by Ms. Rodbart, an official responsible for implementing disability
policy. Invocation of what the rules require is insufficient to show
that the Secretary's actions meet those requirements.

Moreover, even if bare citation of regulations and guidelines could for
present purposes constitute a sufficient factual showing, defendants'
rendering of the relevant rules is itself equivocal. Ms. Rodbart's
affidavit states that POMS guidelines do not require exclusion of other
relevant medical evidence:

The suggested RFC set forth in the POMS (¶ DI 00401.590C) is based
solely on the performance of the treadmill exercise test to certain
exercise (MET) levels without positive signs of ischemia and reflects
SSA's (the Social Security Administration's) policy to give priority to
exercise test results and their measure of function in adjudicating
ischemic heart disease. . . . SSA recognizes, however, that such RFC, as
reflected by the exercise test results, may not be retained where the
individual is restricted by other cardiac impairments or where the
claimant has any other documented limitations.

Affidavit of Barbara C. Rodbart, Nov. 15, 1985, v. 43. Though implying
that non-treadmill evidence may be considered in RFC assessment of
multiple impairments, the affidavit remains consistent with plaintiffs'
position that whenever possible the evaluation of ischemic heart disease
alone relies exclusively on treadmill results.

Similarly equivocal is the assertion that the presumptions set forth in
the POMS "were intended to facilitate the adjudication of disability
claims but should not take precedence over the conclusions that flow from
findings of fact in a given case. Id. ¶ 44 (citing State
Agency Memorandum 44-81 (Saut. 17, 1981)). The memorandum itself from
which Ms. Rodbart paraphrases reveals that treadmill test results are the
only conclusive “findings of fact” in a given case and that
they are overriding when they indicate an ability to do heavy work,
though other signs, such as evidence of myocardial infarction or coronary
bypass may reflect a more restricted functional capacity:

If a properly performed treadmill exercise test ... has been performed,
and the results show the capacity for heavy work activity, this evidence
would override any presumption raised by a history of myocardial
infarction or coronary bypass concerning the individual's
[in]ability to perform heavy work. In no instance should guides
take precedence over the conclusions that flow from findings of fact in a
given case. Hence, for a claimant who has had a myocardial infarction or
a coronary bypass and who has demonstrated, by a properly performed
treadmill test, a capacity for heavy work, it would be appropriate and
consistent with (certain POMS guidelines) to conclude that the individual
has a nonsevere impairment.

The Social Security Administration's Central Office advises that
post-[myocardial infarction] and post-bypass surgery cases are
always more than non-severe (i.e. moderate to moderately severe) and
preclude heavy work unless subsequent treadmill testing shows a
capacity for heavy work in which case the impairment would be
non-severe.

Id. at 1 (emphasis in original).

Far from contradicting plaintiffs' contention that treadmill test results
displace other relevant medical evidence in RFC assessments, these
examples of the priority given to treadmill results, read in context,
support plaintiffs' contention. In other words, there is no real conflict
in what the parties say, and no genuine issue of material fact.14

Because the exclusion of evidence from RFC assessments, like the exclusion
from the Listings analysis, is not genuinely in dispute, plaintiffs are
entitled to partial summary judgment. See Empire Electronics Co.,
supra, 311 F.2d at 179.

Conclusion

The Secretary's policy of giving priority to treadmill test results has
resulted in the exclusion of relevant medical evidence from both the
consideration of whether a claimant's impairment meets or equals the
Listings and the assessment of the claimant's RFC. Enforcement of the
policy has denied plaintiff subclass members their right to present such
evidence in support of their disability claims. There being no genuine
factual issue as to the existence of the policy, plaintiffs' motion for
partial summary judgment is granted and defendants' cross motion for
partial summary judgment is denied.

IT IS SO ORDERED.

Dated: New York, New York

January 12, 1987

/s/ ROBERT
L.
CARTER U.S.D.J.

NOTES

Otis R. Bowen, M.D., succeeded Margaret Heckler as the Secretary of the
Department of Health and Human Services on December 13, 1985, and is
substituted as a defendant herein. Rule 25(d), F.R. Civ. P.

ODD's federal funding and its authority to make determinations depend on
its compliance with the Secretary's regulations and guidelines, and its
decisions are directly reviewable by the Secretary. 42 U.S.C. §§
421(a)(2), 421(c), 421(e), 13835(a); see Bowen v. City of New
York, _____ U.S. _____, _____, 106 S. Ct. 2022, 2025 (1986).
Plaintiffs accordingly bring this action to challenge the Secretary's
alleged enforcement of ODD's compliance with per
se rules, as well as his own alleged use of such rules in
determinations at the federal level. Subsequent discussion of the
Secretary's disability adjudication policy should be understood to
encompass both his own determinations and his enforcement of state
determinations.

Judge Lasker has preliminarily enjoined the Secretary from applying this
“threshold severity” regulation,
20 C.F.R.
§§ 404.1520(c),
416.920(c), to
the class of New York State residents whose SSDI or SSI benefits the
Secretary has withheld or would withhold on the basis of the restriction.
Dixon v. Heckler, 589 F. Supp. 1494, 1502-06, 1511 (S.D.N.Y.
1984) (Lasker, J.), aff'd, 785 F.2d 1102 (2d Cir. 1986). Although some of
the plaintiff subclass members in the instant case may also be members of
the Dixon class, plaintiffs do not rely on the
Secretary's application of the unlawful regulation as a ground for
challenging other policies in this case. Accordingly, the court expresses
no opinion whether, independent of the violations alleged herein, the
Secretary has wrongfully withheld disability benefits from plaintiff
subclass members on the ground that their impairments are not severe.

An impairment “meets” the Listings if it is specifically
included therein, and “equals” the Listings if, though not
itself included, it is equal in severity to at least one impairment that
is enumerated. 20
C.F.R. §§ 404.1520(d),
404.1526,
416.920(d), 416.926 (1986).

Apparently, all of the named subclass members suffer from ischemic heart
disease, although the subclass is defined also to include individuals
impaired by hypertensive vascular disease, myochardiopathies, or rheumatic
or syphilitic heart disease. The parties largely confine their discussion
to the Secretary's disability determinations for claimants with ischemic
heart disease. However, the Secretary may incorporate the procedures at
issue here in adjudicating the claims of unnamed subclass members with
other of these impairments. See Listing §§ 4.03, 4.09. The
court's conclusion as to the challenged procedures should therefore
control the validity of the Secretary's adjudication of the latter group
of claims insofar as he does in fact incorporate the challenged
procedures.

Similarly, a claimant who does not undergo a treadmill test can
establish disability if other medical evidence in the record shows that
his impairment or combination of impairments meets or equals the
Listings. See Listings §§ 4.00G1, 4.00G4. 4.04B.

The intervals are measured in multiples of METs, one MET representing the
estimated oxygen uptake of an individual at rest.

Plaintiffs agree, however, that at least as of late the Secretary allows
evidence of two additional factors, namely, the effects of work-related
stress and environmental restrictions (such as temperature) on the
claimant. Plaintiffs' Surreply Memorandum at 8.

Dr. Weber's deposition reads in part:

Q. Suppose that the claimant has had an angiogram and that the results
meet the [L]istings. Can the claimant be found capable of
performing only light work based on the results of the angiogram if he
has also had a stress test (i.e., a treadmill test) and has completed 7
METs without significant positive (irregular) findings?

A. No.

Q. Is there any set of circumstances absent other types of heart
impairments under which a claimant can be found to meet or equal the
[L]istings for ischemic heart disease or to be capable of
performing only light work if he has completed 7 METs on the stress test
without significant positive findings?

A. No heart disease other than ischemic heart disease completes 7 METs,
are there any circumstances under which —

Q. —can be found capable of performing only light work.

A. Not if there is no other disease or impairment.

Q. Is there any set of circumstances under which a claimant without other
heart impairments can be found to meet or equal the [L]istings for
ischemic heart disease or to be capable of performing only light or
medium working [sic] who has completed 10 METs on the stress test
without significant positive findings?

A. No.

Affidavit of Marla Tepper, Apr. 17, 1986, Exh. A at 122-23.

Dr. Bierenbaum's deposition reads in part:

Q. In the absence of a non-cardiovascular complaint, could the individual
be found solely on the basis of his ischemic heart disease to be capable
of performing only light work if he had completed seven [MET]s on
the stress test without any significant positive findings?

A. No, the presumption would be that he should be able to do medium
work.

Q. Suppose the claimant has ischemic heart disease and has had an
angiogram; suppose that the result of the angiogram meets the
[L]istings. Can the claimant be found to meet the
[L]istings based on the results of the angiogram if he has also
had a stress test and he has completed seven METs without any significant
positive findings?

A. The answer to that would be no, because a stress test takes
precedence.

Q. Suppose, again, that the claimant has had an angiogram and that the
results meet the [L]istings. Can the claimant be found capable of
performing only light work based on the result of the angiogram if he has
also had a stress test and has completed seven [MET]s without
significant positive findings?

A. The answer, so as not to be redundant on the other one, is that he
would be found to be capable of doing medium work.

Q. I believe you have answered this, but just so we are completely clear,
is there any set of circumstances under which the claimant can be found to
meet or equal the [L]istings for ischemic heart disease or to be
capable of performing only light work if he has completed seven
[MET]s on the stress test without any significant positive
findings?

A. No.

Q. Suppose a claimant has ischemic heart disease and has had an angiogram;
suppose the results of the angiogram meet the [L]istings. Can the
claimant be found to meet the [L]istings based on the results of
the angiogram if he has also had a stress test and has completed ten
[MET]s without significant positive findings?

A. The answer is that he cannot be found to meet the
[L]istings.

Q. Can he be found capable of performing only light work based on the
results of an angiogram that meets the [L]isting [sic] if
he has performed ten METs?

A. No.

Q. Can he be found capable of performing only medium or light work based
on the results of an angiogram that meets the [L]istings?

A. No.

Q. And just for the record, is there any set of circumstances under which
the claimant can be found to meet or equal the [L]istings for
ischemic heart disease, or be capable of performing only light or medium
work if he has completed ten [MET]s on the stress test without
significant positive findings?

A. The answer would be yes, again, should there be a second condition.

Q. In the absence of a second condition?

A. No.

Affidavit of Marla Tepper, May 7, 1985, Exh. A at 24-27.

As plaintiffs point out, the study on which defendants place primary
reliance for the accuracy of the treadmill test concludes that the test
fails to identify the presence of ischemic heart disease 38 percent of the
time, rather than 11 percent as defendants assert. Compare
Plaintiffs' Reply Memorandum at 15 & n.*, 16 & n.*, with
Affidavit of Peter Chodoff, M.D., Nov. 14, 1985, ¶ 19 (citing Bruce,
Values and Limitations of Exercise Electrocardography, 50
Circulation (July 1974)).

The exclusiveness of the Secretary's reliance on treadmill results is not
mitigated by the general proposition that a claimant with an
unlisted impairment can “equal the Listings” by
proving that his impairment is equal in severity to a listed impairment,
20 C.F.R.
§§ 404.1526(a),
416.926(a). That
proposition has no bearing on the issue here because, quite simply,
ischemic heart disease is a listed impairment. Listings, §§
4.00D, 4.04. Plaintiffs' assertion that treadmill results supplant other
relevant evidence in the adjudication of claims of this listed impairment
remains uncontradicted.

Defendant also cite regulations and other guidelines calling for
consideration of work-related stress and environmental restrictions,
e.g.,20
C.F.R. §§ 404.1545,
416.945, as
examples of the Secretary's policy of hearing evidence other than
treadmill test results. These “examples” are not particularly
helpful. They do not contradict or even address plaintiff's assertion
— confirmed by Drs. Weber and Bierenbaum — that claimants are
being precluded from presenting medical findings to rebut treadmill test
results.

Speculation remains over the inferences to be drawn from
“returns,” cases returned to ODD by the Secretary with
accompanying instructions for correction. The parties offer conflicting
interpretations. However, such speculation does not suffice to defeat a
motion for summary judgment and, in any event, in view of the lack of
disagreement over the Secretary's policy as outlined above, the
significance of the returns is immaterial. Knight v. U.S. Fire
Insurance Co., 804 F.2d 11-12 (2d Cir. 1986).

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

THE STATE OF NEW YORK, CESAR PERALES, as Commissioner of the New York
State Department of Social Services, THE CITY OF NEW YORK, THE COUNTY
OF SUFFOLK, PETER F. COHALAN, as County Executive of the County
of Suffolk, ANITA ROMERA, as Commissioner of the Suffolk County
Department of Social Services, and WALTHON WHITE, HAYDEE GUZMAN,
ANIBAL VILLANUEVA, RAFAEL RIVERA, GLADYS DOMINGUEZ, HECTOR MUNIZ,
LUIS DIAZ, CATHRYN GIBBONS, MARIA GONZALEZ, JORGE PEREZ, EDWARDA
RIVERA, AND HERMINA GONZALEZ, and all others similarly situated,

Commissioner of the Social SecurityAdministration; and THE UNITED
STATES

DEPARTMENT OF HEALTH AND HUMAN SERVICES,Defendants.

THE COURT having certified a class on March 11, 1985, consisting of:

All New York State residents with cardiovascular impairments whose
applications or eligibility for SSDI or SSI disability benefits have been
or will be denied or terminated by the application of
per se denial rules on or after June 1, 1980;

AND the Court having further certified a subclass of individuals from the
above class consisting of those:

Who have ischemic heart disease, hypertensive vascular disease,
myocardiopathies, or rheumatic or syphilitic heart disease and whose
disability benefits have been or will be denied or terminated based on the
application of per se denial rules pertaining to
treadmill exercise tests;

AND plaintiffs, having moved the Court for partial summary judgment, or
alternatively for a preliminary injunction, and defendants having
cross-moved for partial summary judgment, and this Court having issued an
opinion dated January 12, 1987, filed by the Clerk of the Court on January
13, 1987, IT IS HEREBY ORDERED THAT plaintiffs' motion for partial
summary judgment is granted, and defendants' cross-motion for partial
summary judgment is denied and that:

Substantive Relief

Defendants shall readjudicate subclass members' cases. In readjudicating
those cases, defendants shall fully develop and consider all relevant
evidence, including newly-obtained evidence, in each subclass member's
claims file(s). Defendants are permanently enjoined from considering the
results of a treadmill exercise test (“TET”) to the exclusion
of other relevant evidence and from failing to consider all relevant
evidence in assessing the disability of subclass members. Defendants shall
base their assessment of disability of subclass members at steps 2, 3, 4
and 5 of the sequential evaluation process upon an overall evaluation of
the claimant's signs, symptoms and laboratory findings, and the treating
physicians' opinions.

In all cases in which an adjudicator, at any level, proposes to rely on
the results of a TET to deny or terminate benefits, if the record contains
inconsistent or contradictory signs, symptoms, laboratory findings, or
treating physicians' opinions, the adjudicator shall provide a rationale
justifying his reliance on the TET.

Defendants are permanently enjoined from denying or terminating a
claimant's disability benefits based primarily on the results of a TET
which “shows the capacity for heavy work.” See State
Agency Memorandum 44-81 (Sept. 17, 1981). Defendants shall base their
assessments of disability for these claimants upon all the relevant
evidence in the claimants' claims file(s) as set forth in paragraphs 1
and 2 herein.

Instructions

Defendants shall draft instructions for properly evaluating the
eligibility of subclass members for benefits. These instructions shall be
provided to plaintiffs' counsel and all offices adjudicating cases of
subclass members (“the adjudicating offices”), including the
New York State Office of Disability Determinations (“ODD”),
the Social Security Administration's Office of Hearings and Appeals
(“OHA”), the Appeals Council and the New York Regional
Office. These instructions shall be consistent with the language of this
Court's January 12, 1987 opinion and shall contain the substance of the
provisions set forth in paragraphs 1 through 4 of this Order and Judgment.
These instructions shall replace any existing instructions regarding
adjudications based on TETs that are not consistent with this Order and
Judgment.

Defendants shall provide plaintiffs' counsel with a copy of their proposed
instructions for readjudicating cases of subclass members within 90 days
of the date that this Order and Judgment is entered. Plaintiffs' counsel
shall then have 30 days to submit any objections to those instructions to
defendants' counsel. In the event that the parties cannot resolve their
differences within 30 days thereafter, the proposed instructions and
objections will be submitted to this Court for its resolution of the
dispute.

Defendants shall provide plaintiffs' counsel with a copy of their proposed
instructions for screening subclass members within 90 days of the date
that this Order and Judgment is entered. Plaintiffs' counsel shall then
have 30 days to submit any objections to these instructions to defendants'
counsel. In the event that the parties cannot resolve their differences
within 30 days thereafter, the proposed instructions and objections will
be submitted to this Court for its resolution of the dispute.

After the substance of the instructions in paragraphs 5, 6, and 7, above,
has been agreed to by the parties or has been decided by the Court, the
instructions shall be sent to New York State Social Security
Administration offices and to ODD within 30 days.

Defendants shall provide plaintiffs' attorneys with copies of all
teletypes, program operations manual system (“POMS”)
instructions, program circulars and temporary instructions and other
documents issued to effect compliance with this Order and Judgment as
these documents are issued.

Defendants shall also provide training to the staff of ODD concerning the
implementation of the instructions upon the specific request by ODD for
such training.

Identification of Subclass Members

(a) Once instructions are issued pursuant to paragraph 8 above, defendants
shall send a notice to all potential subclass members identified by
Social Security Administration (“SSA”) records whose
disability claims were denied or who were terminated from entitlement to
Social Security Disability Insurance (“SSDI”) benefits or
Supplemental Security Income (“SSI”) benefits at Step 3, 4,
or 5 of the sequential evaluation process, set forth in
20 C.F.R.
§§ 404.1520 and
416.920 (1988),
between June 1, 1980 and February 1, 1987 and those whose records were
coded “170” and were denied or who were terminated from
entitlement to SSDI or SSI benefits at Step 3, 4, or 5 of the sequential
evaluation process from February 1, 1987 to the date that the new
adjudicative instructions are issued pursuant to paragraph 8. Defendants
also shall send a notice to all claimants whose disability claims were
denied or who were terminated from entitlement to SSDI or SSI benefits at
Step 3, 4 or 5 of the sequential evaluation process from February 1, 1987
to the date that the new adjudicative instructions are issued pursuant to
paragraph 8 and who have been identified by ODD to have had a treadmill
exercise test, but whose records were not coded “170.” These
notices will instruct the potential subclass member to return an enclosed
postage paid postcard (or envelope) if he wishes to receive relief under
this Order and Judgment. If a potential subclass member responds to the
notice, SSA will issue him a written acknowledgement of receipt of the
response.

(b) Defendants shall provide plaintiffs' counsel with a copy of their
proposed notice to potential subclass members and proposed postcard (or
envelope) within 60 days after this Order and Judgment is entered by the
Clerk of the Court. Plaintiffs' counsel shall then have 30 days to submit
any objections to this notice to defendants' counsel. Defendants shall
then have 30 days to revise the notice. In the event that the parties
cannot resolve their differences within 30 days thereafter, the matter
will be submitted to this Court for its resolution of the dispute.

(c) After the substance of the notice and postcard (or envelope) in
subsections (a) and (b) above has been agreed to by the parties or has
been decided by the Court, and once instructions are issued pursuant to
paragraph 8 above, defendants will immediately begin mailing the notice in
staggered increments representing twenty percent (20%) of the total
potential subclass size. Mailing of notices will be completed within 24
months of the date that instructions are issued pursuant to paragraph 8.
Defendants shall use every good faith effort to screen for subclass
membership on a continuous flow basis and as expeditiously as possible,
and shall attempt in good faith to complete the screening of all potential
subclass members' and to commence readjudications of all subclass
members' cases within 24 months after the initial notice is mailed.
Potential subclass members will have 120 days from receipt of the notice
to respond to the mailing. Defendants shall presume that the notice was
received 5 days after the date of mailing and the mailing date shall be
marked on the notice. Subclass members who respond to the notice after
125 days from the date of mailing shall receive full relief as subclass
members if they demonstrate that they are responding within 120 days of
their actual receipt of the notice, or if they demonstrate that they have
“good cause” as defined in
20 C.F.R.
§§ 404.911 and
416.1411 (1988)
for missing the 120-day deadline.

(d) In addition, defendants shall reproduce in both the English and
Spanish languages a 17 inch by 22 inch poster, the language of which will
be agreed upon by the parties or submitted to the Court for resolution of
any dispute. The poster shall also serve as a notice to potential subclass
members. Equal numbers of English and Spanish language copies of this
poster will be prominently displayed in all SSA offices in the State of
New York to which the public has access and plaintiffs' attorneys will be
supplied with 1100 copies of this poster. Plaintiffs may specify what
percentage of the 1100 posters they wish to have prepared in the Spanish
language. Potential subclass members will have either 120 days to respond
to SSA's release of these posters or 120 days to respond to the mailing in
paragraph 11(a) and (c) above, whichever is later.

Upon entry of this Order and Judgment, defendants are directed to make
good faith efforts to immediately inform all SSA district offices and all
adjudicating offices that they are required to maintain a list of all
individuals who identify themselves as subclass members
(“walk-ins”), and defendants shall ensure that such notice is
received by those offices no later than ten (10) days after entry of this
Order and Judgment by the Clerk of the Court. Defendants shall be deemed
to have fully complied with this paragraph of the Order and Judgment if
they have so informed SSA district offices and adjudicating offices within
one (1) month prior to the entry of this Order and Judgment by the Clerk
of the Court. Walk-ins will receive a written acknowledgment that they
have elected to have their case reviewed under this Order and
Judgment.

SSA will respond, in writing, to any written inquiry from an individual
concerning the status of his subclass membership claim.

For those individuals who respond to a notice or walk in and identify
themselves as potential subclass members to an SSA district office or any
other adjudicating office, a screening process will be conducted to
determine if they are subclass members. In doing so, SSA's records will be
reviewed to determine if: (1) the individual was denied benefits or
terminated from entitlement to benefits between June 1, 1980 and the date
that the instructions in paragraph 5 are issued, and (2) the results of a
TET were considered in adjudicating his claim. After screening each file,
the adjudicating office will readjudicate the cases of those individuals
determined to be subclass members. ODD will screen the cases of the
individuals claiming subclass membership whose application(s) or
termination(s) was last adjudicated by ODD and will readjudicate the cases
of those subclass members who are included in paragraph 19(a) and/or
paragraph 20(a)(1), but defendants shall have the right to relieve any
backlog or overflow of cases by distributing or shifting cases to an
adjudicating office other than ODD. The defendants will adjust ODD's
workload, including the processing of initial claims, reconsiderations and
Continuing Disability Reviews (“CDRs”), as necessary in order
to achieve the time goals set forth in paragraph 11(c).

If it is determined that an individual is a subclass member, defendants
shall mail a notice to such subclass member within 30 days of that
determination. If it is determined that an individual is not a subclass
member, defendants shall provide a notice with an explanation of why he is
not a subclass member to the individual within 30 days of that
determination. Such notice shall advise the individual that he may contact
the “Cardiac Case Membership Unit,” c/o Legal Services for
the Elderly, if he is dissatisfied with defendants' determination. If the
Cardiac Case Membership Unit establishes that there is a dispute between
the parties as to whether an individual is a subclass member, it shall
refer such dispute in writing to the Social Security Division of the
Office of the General Counsel, United States Department of Health and
Human Services, Altmeyer Building, 6401 Security Blvd., Baltimore,
Maryland 21235 (“OGC”), for resolution. Individuals claiming
to be subclass members retain the right to contact OGC without the
assistance of the Cardiac Case Membership Unit. Either party or any
individual claiming subclass membership may submit any unresolved dispute
concerning an individual's subclass membership to the Court for
resolution.

Defendants shall provide to plaintiffs' counsel a draft of the notices
that will be used to notify claimants of subclass membership decisions
within 60 days of the date of entry of this Order and Judgment by the
Clerk of the Court. Plaintiffs' counsel shall then have 30 days to advise
defendants' counsel of any objections or comments. Defendants shall then
have 30 days to revise the notice. In the event that the parties cannot
resolve their differences, any dispute regarding the language in the
notices shall be submitted to this Court for final resolution.

In the event that a notice mailed pursuant to paragraph 11(a) is returned
as undeliverable, the defendants shall remail the notice to the same
address. If the second mailing is also unsuccessful, the defendants shall
attempt to obtain a better address by contacting the post office, checking
defendants' automated records, and working with the potential subclass
member's servicing SSA district office for reasonable leads for the
purpose of locating the potential subclass member. Defendants shall also
attempt to obtain better addresses by providing a computer tape to the New
York State Department of Social Services' (“NYSDSS”) so that
NYSDSS can perform a match with its public assistance, food stamp, and
other records. The defendants shall mail a third notice to all potential
subclass members for whom other addresses are obtained.

If a potential subclass member's claims file(s) must be reviewed for a
subclass membership determination and cannot be located within 120 days
from the date on which the folder is called up for review, and if SSA's
records confirm that the individual applied for or had been receiving SSDI
or SSI disability benefits and his entitlement to such benefits was
denied or terminated on or after June 1, 1980, the defendants shall
reconstruct the evidence that is necessary to make a subclass membership
determination and shall contact the potential subclass member so that the
individual can aid in reconstructing the evidence. If an individual's
claim was been coded “170,” SSA shall consider that
individual to be a subclass member entitled to receive a readjudication
under this Order and Judgment, irrespective of whether SSA is able to
locate the actual claim folder, if the individual has timely responded to
the notice provided by defendants in paragraph 11, unless evidence that
is later adduced demonstrates that the individual is not, in fact, a
subclass member.

Readjudications

The readjudication of subclass members' claims will be handled as
follows:

(a) Subclass members whose benefits application(s) or termination(s) that
forms that basis of subclass membership was last adjudicated by ODD, will
receive a readjudication, for all claims, appealable to an Administrative
Law Judge (“ALJ”) and will retain all rights to further
administrative and judicial review as provided in 42 U.S.C. §§
405(g) and 1383(c)(3) and 20 C.F.R. Part 404, Subpart J and Part 416,
Subpart N (1988).

(b) Subclass members whose benefits application(s) or termination(s) that
forms the basis of subclass membership was last adjudicated by an ALJ or
by the Appeals Council will have a readjudication by an ALJ, for all
claims, and will retain all rights to further administrative and judicial
review as provided in 42 U.S.C. §§ 405(g) and 1383(c)(3) and 20
C.F.R. Part 404, Subpart J and Part 416, Subpart N (1988).

(c) If a subclass member has more than one administrative determination or
decision requiring readjudication under this Order and Judgment, the
level of adjudication of the most recent administrative determination or
decision will control the handling of those cases, which shall be
consolidated, under the aforementioned procedures.

(a) A subclass member with a current claim active and pending at any
administrative level will have all other claims covered by this Order and
Judgment consolidated with that current claim at the level at which the
current claim is pending unless the current claim is pending at the ALJ
(hearing) level and the subclass member or the ALJ refuses consolidation
or unless the current claim is pending at the Appeals Council level. This
consolidation will be accomplished according to the following
procedures:

(1) If there is a claim pending at the initial or reconsideration level at
the time the readjudication under this Order and Judgment is undertaken
and a common issue exists, that claim and the claim under this Order and
Judgment will be consolidated at the initial or reconsideration level.

(2) If there is a claim pending at the ALJ (hearing) level at the time the
readjudication under this Order and Judgment is undertaken and a common
issue exists, that claim and any claim under this Order and Judgment will
be consolidated at the ALJ (hearing) level. However, the claims will not
be considered at that level if the ALJ does not agree that a common issue
between the claims exists or if the claimant objects to the consolidation
of the claims. Claimants shall be expressly informed of any proposed
consolidation and provided the opportunity to object to the consolidation.
Instructions for the effectuation of the provisions in this subparagraph
will be part of the package of instructions issued pursuant to paragraph
6.

(3) If there is a claim pending at the Appeals Council level at the time
the readjudication under this Order and Judgment is undertaken, that claim
will not be consolidated with any claim under this Order and
Judgment.

To the extent that inconsistent procedures for the handling of subclass
members' claims are dictated by these consolidation procedures and by the
readjudication procedures set forth in paragraph 19, the consolidation
procedures set forth in paragraph 20 shall take precedence. To the extent
that inconsistent procedures for the handling of subclass members' claims
are dictated by these consolidation procedures and by the provisions of
paragraph 30, the provisions of paragraph 30 shall take precedence.

(b) Subclass members with civil actions pending pursuant to 42 U.S.C.
§ 405(g) or § 1383(c)(3) in one of the four United States
District Courts situated in the State of New York or in the United States
Court of Appeals for the Second Circuit as of the date of entry of this
Order and Judgment will be given the option of proceeding with their
individual court case or receiving relief in that case under this Order
and Judgment. Defendants shall provide each such subclass member with a
notice (“choice notice”) explaining this option. Defendants
shall provide plaintiffs' counsel with a draft of the notice within 14
days of the date that this Order and Judgment is entered by the Clerk of
the Court. Plaintiff's counsel shall then have 10 days to submit any
objections to the notice to defendants' counsel. In the event that the
parties cannot resolve their differences within 10 days thereafter, the
proposed notice and objections will be submitted to this Court for its
resolution of the dispute. Defendants shall provide each such subclass
member with this choice notice within 10 days after the language of the
choice notice is agreed to by the parties or resolved by this Court. If
any such subclass member does not receive the choice notice, he will have
the right to have his claim administratively reopened, even after the
issuance of an adverse federal court decision after the date of entry of
this Order and Judgment. If a subclass member elects relief under this
Order and Judgment, after remand the readjudication will be handled
pursuant to paragraph 19(b) above. If an individual decides to proceed
with his individual court case, his decision will not affect his right to
receive a readjudication under this Order and Judgment of any other
claim(s). Nothing in this Order and Judgment, however, shall be construed
to preclude the res judicata effect of a court
decision where a subclass member decides to proceed with his individual
court case.

Defendants' readjudication shall be performed according to the
instructions issued pursuant to paragraphs 5 and 6 of this Order and
Judgment. For claimants who are subclass members by virtue of a decision
denying their application(s) for SSDI or SSI benefits, the readjudication
shall be a reevaluation of the subclass member's eligibility for benefits
based on all evidence in file, including newly obtained evidence, relevant
to the period of time at issue in the administrative decision(s) that
form(s) the basis of the claimant's subclass membership. In the case of
any readjudication that results in a favorable decision (i.e., an
award of benefits), defendants shall proceed to determine whether the
subclass member's disability continues as of the date of the
readjudication in accordance with the standards and procedures set forth
in 42 U.S.C. §§ 423(f) and 1382c(a). For applicant subclass
members who request relief under this Order and Judgment and whose claims
are active and pending at any administrative level as of the date that
instructions are issued pursuant to paragraphs 5 and 6 the period to be
adjudicated shall be the period in accordance with
20 C.F.R.
§§ 404.620(a) and
416.330 (1988).
For claimants who are subclass members by virtue of a decision ceasing
disability benefits, the readjudication shall be an evaluation of the
subclass member's eligibility for benefits from the date benefits were
ceased through the date of the readjudication. Every notice in less than a
fully favorable readjudication shall contain a statement that the
claimant has the right to appeal the decision and/or reapply for benefits
if he believes that his condition has worsened or will worsen.

The fact that an individual has filed multiple claims shall not be used by
SSA as a basis for unreasonably delaying either the issuance of a final
decision or effectuation of payment of benefits (due to a final decision)
in any claim that has not yet been identified for consolidation pursuant
to paragraph 20(a).

For any readjudication that results in a partially or fully favorable
decision for the claimant, defendants shall find such individual disabled
for any applicable period and restore benefits retroactively, consistent
with 42 U.S.C. §§ 423(a) and 1382. Defendants shall make good
faith efforts to restore benefits by certifying checks to those subclass
members found eligible to the Department of the Treasury within 60 days of
the date SSA determines that the individual is eligible for benefits.
Defendants shall find that a subclass member is no longer disabled (or was
no longer disabled for the purpose of finding a “closed”
period of disability) and shall terminate benefits (or render a closed
period decision) only upon finding that the subclass member is (or was) no
longer entitled to receive benefits pursuant to 42 U.S.C. §§
423(f) and 1382c(a), provided that such subclass member shall retain all
rights, if any, to continued receipt of benefits during an administrative
appeal, pursuant to 42 U.S.C. §§ 423(g) and 1383(a)(7).

On a quarterly basis, beginning 90 days after the notices in paragraph 11
are sent, defendants will provide to plaintiffs' counsel reports, which
will include the following:

(a) The number of individuals who have requested subclass membership.

(b) The number of individuals who have been screened into the
subclass.

(c) The number of individuals who have been screened out of the
subclass.

(d) The number of individuals whose claims were favorable
readjudicated.

(e) The number of individuals whose claims were unfavorably
readjudicated.

Defendants shall provide to plaintiffs' counsel information about subclass
members that is reasonably available to the defendants as plaintiffs'
counsel may reasonably request including, but not limited to, the
following: (a) copies of all subclass members' readjudications at every
level, to be sent on a flow basis contemporaneous with the issuance of the
actual readjudication(s); (b) a computer tape including identifying data
for all cases coded “170,” (c) the systems specifications
used to identify potential subclass members, and (d) the number of
individuals whose notices were returned as undeliverable after the first
mailing and after the second mailing and the number of individuals who
were sent a third mailing and the number whose responded to the third
mailing.

The Named Plaintiffs

26. The following named plaintiffs, who may or may not be subclass
members, shall be entitled to the same relief provided to subclass
members, except that these named plaintiffs shall have their case
readjudications expedited:

Maria Gonzales

Anibal Villaneuva

Edwarda Rivera

Herminia Gonzalez

Jorge Perez

Walthon White

Hector Muniz

This Court shall retain jurisdiction over the claims of Herminia Gonzalez
and Anibal Villaneuva.

27. The following named plaintiffs shall not be entitled to any relief
pursuant to this Order and Judgment because defendants have represented
that they have already received fully favorable decisions on their claims
for disability benefits. In the event that these plaintiffs are determined
to have received less than fully favorable decisions, defendants shall
provide the same relief to these plaintiffs as is provided by this Order
and Judgment to the subclass members:

Cathryn Gibbons

Gladys Dominguez

Luis Diaz

Haydee Guzman

Rafael Rivera

28. Nothing in this Order and Judgment shall be construed to preclude the
named plaintiffs from obtaining on alternative grounds relief greater than
that provided herein.

29. Defendants shall provide all named subclass members, except those who
have already obtained all relief from a federal district court or court of
appeals, the rights provided by this Order and Judgment.

Miscellaneous Provisions

30. Except in cases where a subclass member has availed himself of relief
under this Order and Judgment, nothing in this Order and Judgment shall be
construed to require the remand of an administrative appeal or a request
for judicial review. Nothing in this Order and Judgment shall be construed
to preclude members of the class and subclass from obtaining on
alternative grounds relief greater than is provided herein.

31. The subclass includes every person who otherwise meets the subclass
requirements and who lived in New York State at the time of the denial or
termination which forms the basis of the individual's subclass
membership.

33. All subclass members' case readjudications shall be made in accordance
with current law.

34. This Court shall retain jurisdiction over this action solely for the
implementation of the specific provisions of this Order and Judgment and
to ensure that the named plaintiffs and the individual subclass members
are properly recognized for purposes of obtaining relief pursuant to this
Order and Judgment and for the purpose of adjudicating plaintiffs' claims
for attorneys fees, if any, pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412. Any claim for attorney's
fees and costs under the EAJA must be filed with thirty (30) days after
this Order and Judgment becomes final under 28 U.S.C. §
2412(d)(2)(G), and nothing herein shall be construed as waiving or
extending that statutory deadline. The Court shall not retain jurisdiction
to provide judicial review, pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3), of final administrative decisions that result from the
readjudication of individual claims following remand. The provisions of
this paragraph are without prejudice to the subclass members' rights to
seek timely review of the final decisions of the Secretary on remand in
their respective judicial districts in separate actions pursuant to 42
U.S.C. §§ 405(g) and 1383(c)(3).

35. Subclass members who are members of any other certified class in a
class action shall be entitled to all rights provided in this Order and
Judgment.

36. Subclass members shall retain all rights to administrative and
judicial review of the decisions made as a consequence of this Order and
Judgment.

37. All claims in the amended complaint for which relief has not been
granted in this Order and Judgment are hereby dismissed without
prejudice.

The above-identified claimant may be a State of New
York class member. The attached folder location information indicates
that a current claim folder is pending in your location. Accordingly, we
are forwarding the attached alert [and prior claim folder(s)] for
association, screening for class membership and any additional necessary
action. Please refer to TI 5-436 for additional information and
instructions.

Did the claimant file an application for disability benefits under Title II or Title XVI of the Social Security Act? (NOTE: Regardless of the absence of any documentation on the computer, DO NOT screen the claimant out if they have provided evidence of a denial or cessation decision issued between June 1, 1980, and February 2, 1994.)

____ 04

If yes: Go to 5.

If no : Stop here. Check block 04 and follow II below.

5.

Did the claimant live in New York State at the time of any final denial or cessation decision of the Secretary made between 6/1/80 and 2/2/94?

____ 05

If yes: Go to 6.

If no : Stop here. Check block 05 and follow II below.

6.

Did the claimant receive a subsequent fully favorable decision for the earliest alleged onset date for Title II or the earliest application date for Title XVI?

____ 06

If yes: Stop here. Check block 06 and follow II below.

If no : Go to 7.

7.

Was the claim(s) finally decided after 2/2/94?

____ 07

If yes: Stop here. Check block 07 and follow II below.

If no : Go to 8.

8.

Was the claim(s) decided by a judgment of a district court that became final and unappealable before December 4, 1989?

____ 08

If yes: Stop here. Check block 08 and follow II below.

If no : Go to 9.

9.

Is any case a “170” case?

(Generally found by referring to Item 26 on the SSA 831 or Item 34 on the SSA 832/833.)

If yes: Go to 12.

If no : Go to 10.

10.

Was any claim(s) finally denied or ceased at step 3 (Title II widow/widower or Title XVI disabled children), 4 or 5 of the sequential evaluation process (or the equivalent steps of the CDR process) by the New York DDS, by a hearing office servicing the State of New York or by the Appeals Council between 6/1/80 and 12/3/89, inclusive?

If yes: Go to 12.

If no : Go to 11.

11.

Was any claim(s) finally denied or ceased at step 2, 3 (Title II widow/widower or Title XVI disabled children), 4 or 5 of the sequential evaluation process (or the equivalent steps of the CDR process) by the New York DDS, by a hearing office servicing the State of New York or by the Appeals Council between 12/4/89 and 2/2/94?

____ 11

If yes: Go to 12.

If no : Stop here. Check block 11 and follow II below.

12.

On any claim(s) did the claimant allege, or is there evidence in file of ischemic heart disease, hypertensive vascular disease, myocardiopathies, rheumatic or syphilitic heart disease?

____ 12

If yes: Go to 13.

If no : Stop here. Check block 12 and follow II below.

13.

On any claim(s) does the medical evidence in file include the results of an exercise test (e.g., treadmill, bicycle, arm ergometry)?

____ 13

If yes: Follow III below.

If no : Stop here. Check block 13 and follow II below.

II.

NON-MEMBERS OR MEMBERS WHO HAVE ALREADY RECEIVED RELIEF

If you checked block 04, 05, 06, 07, 08, 11, 12 or 13 the claimant is not entitled to relief as a class member. Check “NON-MEMBER (F)” in item 3, and fill in the screen-out code (04, 05, 06, 07, 08, 11, 12 or 13). Proceed to IV.

III.

CLASS MEMBERS

If you have no blocks checked, the claimant is entitled to relief as a class member. Check “MEMBER (J)” in item 3. Proceed to IV.

IV.

DATES

On the lines below, please enter the date(s) of all final decisions considered in the screening process, and indicate the administrative level at which the final decision was made (i.e., DDS, ALJ, AC). Also record the dates of any determinations after February 2, 1994 that you considered in the screening process, and indicate the administrative level at which the determination was made (i.e., DDS, ALJ, or AC).

Consider all title II and title XVI claims (initials or cessations)
finally decided during the period June 1, 1980 to February 2, 1994,
inclusive.

Review the State of New York alert, related
queries (FACT, SSIRD, etc.) and claim file(s).

Whenever a claim file has been destroyed or declared lost, determine if
the case may be screened out solely on the basis of information shown or
on the queries.

EXAMPLE 1. The SSIRD shows that the title XVI claim(s) was denied for
excess income and resources; the FACT shows that the title II claim(s) was
denied because insured status was not met at any point, or that the
alleged onset date occurred more than one year after insured status was
last met (disallowance code 90): Check block 11.

EXAMPLE 2. The SSIRD shows a title XVI claim that was denied initially but
subsequently allowed at the reconsideration or ALJ level with no change
in the date of eligibility: Check block 6. Any case which cannot be
conclusively screened out on the basis of the queries must be sent
the FO for reconsideration.

Complete Questions 1 through 3 and Part I of the screening sheet as
follows:

Question 1. Enter the SSN under which the claim was filed and check title
II, title XVI or concurrent.

Question 2. Enter the claimant's name.

Question 3.

Enter BIC (title II) or ID (title XVI)

Concurrent title II and title XVI claims:

Enter the BIC or ID for the claim that was a medical-vocational denial. If
both claims were medical-vocational denials, always enter the BIC.

Concurrent DIB and DWB or CDB claims:

Enter the BIC for the claim that was a medical-vocational denial. If both
claims were medical-vocational denials, always enter the DIB claim
BIC.

Multiple claims filed at different times:

When all claims are screened out, enter the BIC or ID of the earliest
claim screened. When at least one claim has been screened in, enter the
BIC or ID of the earliest claim that makes the responder a class
member.

Enter the date that the case was screened.

Check the class membership determination block.

Check block J when one or more claims are screened in for DDS/OHA
review.

Check block F and enter the screen out code of the earliest claim screened
when none of the claims are screened in for DDS/OHA review.

Question 4.

Determine if the claimant filed an application for title II or title XVI
disability insurance benefits.

The absence of FACT or SSIRD information does not necessarily mean the
claimant did not file an application. When both the FACT and SSIRD queries
show no record, obtain a numident query to determine if the claimant has
a cross-reference SSN. If the numident does not disclose a possible title
II or title XVI claim number, send the claimant a SSN verification notice
if the FO has not already done so.

If the FO has previously verified the claim number and there is no
evidence of a disability application, check block 4; check block F and
fill in the screen out code in Question 3; sign the screening sheet.

Question 5.

Screen for residency as of the date of the final determination or
decision, not the date of the application.

If the date of the final decision was between June 1, 1980 and February 2,
1994, inclusive, go to Question 6.

If the answer to Question 5 is no for all decisions, check block 5; check
block F and fill in the screen out code in Question 3; sign the screening
sheet.

Question 6.

Review the file(s) and queries (e.g., FACT, SSIRD) to determine if
benefits were subsequently allowed or continued. If yes:

in title II cases, check the subsequent award/continuation for the first
month of entitlement.

in title XVI cases, check the subsequent award/continuation for the first
month of eligibility.

Identify the earliest State of New York
claim/termination. Determine the earliest month that benefits could have
been paid based on the State of New York alleged
onset and the State of New York application or
termination date.

Compare the earliest possible State of New York
benefit date with the subsequent award or continuation dates. If the dates
are the same and the allowance or continuation was fully favorable (not a
closed period allowance), check block F and fill in the screen out code
in Question 3; sign the screening sheet.

In title II cases, if full retroactive benefits were not paid, also check
to see if the later award established an onset that would allow payment
back to the first possible month under the State of
New York claim. If the earliest possible onset was established, but
full retroactive benefits were not paid:

Change the application date on the later SSA-831/832/833 to reflect the
State of New York application date, enter
"State of New York Court Case, retroactive
benefits due based on earlier application," and sign and date the form.
Then forward the case to the appropriate effectuating component.

Question 7.

Screen for the date of the final determination or decision, not the date
of the application.

If the date of the final decision was between June 1, 1980 and February 2,
1994, inclusive, go to Question 8.

If the answer to Question 7 is yes for all applications, check block 7;
check block F and fill in the screen out code in Question 3; sign the
screening sheet.

Question 8.

Screen to determine if the judgment of the district court was actually
appealed or if the district court issued a final, i.e., unappealed,
decision on the State of New York application(s)
on or before October 5, 1989.

NOTE:

The period within which an appeal of a district court decision may be
filed is 60 days from the date of entry of judgment. Therefore, a district
court decision entered on October 2, 1989 became final and unappealable
on December 2, 1989, the 61st day after entry of judgment if no appeal
was filed.

If the answer to Question 8 is yes and no other claims qualify for
State of New York DDS/OHA review, check block 8;
check block F and fill in the screen out code in Question 3; sign the
screening sheet.

Question 9.

Review Item 26 on the SSA-831 or Item 34 on the SSA-832/833 to determine
if the case was listed under code “170.”

If the answer to Question 9 is yes, skip Questions 10 and 11 and continue
with Question 12.

If the answer to Question 9 is no, Question 10 must be answered.

Question 10.

Review the file(s) and queries (e.g., FACT, SSIRD) to determine whether
the claimant received a denial/cessation decision on any claim(s) between
June 1, 1980 and February 2, 1994, inclusive, by the New York DDS, a
hearing office servicing NY residents or the Appeals Council at steps 3, 4
or 5 of the sequential evaluation process. (Look for basis denial codes
for title II of E1, E2, E3, E4, G1, G2, H1, H2, J1, J2, K1, K2, L1, L2,
M5, M6; for title XVI, N31, N32, N34, N35, N37, N39, N40, N42, N43, N45,
N46, N51 on the SSA-831.) In a CDR case, read the rationale to determine
the reason for the cessation on the SSA-832/833. In a DHU or ALJ case,
read the decision to determine the basis for the denial or cessation.

If the answer to Question 10 is no, you must answer Question 11.

If the answer to Question 10 is yes, skip Question 11 and continue with
Question 12.

Question 11.

Review the file(s) and queries (e.g., FACT, SSIRD) to determine whether
the claimant received a denial/cessation decision on any claim(s), between
December 4, 1989, and February 2, 1994, inclusive, by the New York DDS, a
hearing office servicing NY residents or the Appeals Council at steps 2,
3, 4 or 5 of the sequential evaluation process. (Look for basis denial
codes for title II of E1, E2, E3, E4, F1, F2, G1, G2, H1, H2, J1, J2, K1,
K2, L1, L2, M5, M6; for title XVI, N30, N31, N32, N34, N35, N37, N39, N40,
N41, N42, N43, N44, N45, N46, N51 on the SSA-831.) In a CDR case, read
the rationale on the SSA-832/833 to determine the reason for the
cessation. In a DHU or ALJ case, read the decision to determine the basis
for the denial or cessation.

If the answer to Question 11 is yes, you must answer Question 12.

If the answer to Question 11 is no, check block 11; check block F and fill
in the screen out code in Question 3; sign the screening sheet.

Question 12.

Review the file(s) for evidence of ischemic heart disease, hypertensive
vascular disease, myocardiopathies, rheumatic or syphilitic heart disease.
There are many pieces of evidence in a file that can provide
allegations/evidence of cardiovascular disease. The following are some
common sources but are not intended to be all inclusive:

Items 16A and 16B of any prior SSA-831 for the primary and secondary
diagnosis, body system and code number.

Items 21 and 32 of any prior SSA-832/833 for the primary and secondary
diagnosis, body system and code number.

Reports of contact prepared by the DDS based on conversations with the
claimant or a treating/consulting physician.

Any decision issued by an ALJ or the Appeal Council.

NOTE:

If an exercise test (see Question 13) was done in conjunction with a
cardiovascular diagnosis, such as hypertension, congenital heart disease,
etc., not mentioned above, answer Question 12 “yes.” (If
there is any doubt about the cardiovascular nature of a diagnosis or
alleged impairment, consult a physician. Any remaining doubt about the
cardiovascular nature of a diagnosis or alleged impairment should be
resolved in the claimant's favor with a “yes” response.)

If the answer to Question 12 is yes, you must answer Question 13.

If the answer to Question 12 is no, check block F and fill in the screen
out code in Question 3; sign the screening sheet.

Question 13.

Review the file(s) for a report on the results of an exercise test (e.g.,
treadmill (TET), bicycle, arm ergometry, etc.) and/or the tracings.

If the answer to Question 13 is yes, the claimant is entitled to relief as
a class member. Follow the instructions at Part III on the screening
sheet.

If the answer to Question 13 is no, check block 13; check block F and
enter the screen out code in Question 3.

Complete Part IV of the screening sheet by entering

the dates and administrative review level (initial, recon, ALJ or Appeals
Council) of all final determinations/decisions issued during the period
June 1, 1980 to February 2, 1994, inclusive, that were considered during
the screening process, as well as the dates and administrative review
level of all final determinations/decisions issued after February 2,
1994.

Complete Part V, “Screener Identification.”

Place a copy of the completed screening sheet in the claim folder (on the
top right side of the file) and forward the original to:

WE HAVE DETERMINED THAT YOU ARE NOT ENTITLED TO RECEIVE A NEW DECISION
IN THE STATE OF NEW YORK V. SULLIVAN (THE
EXERCISE TEST CASE).

You asked us to review your case under the terms of the exercise test
case, or under another of the New York court cases (i.e.,
Stieberger, Dixon,
and/or Hill), or we identified you as a
potential State of New York class member through
some other means. We have looked at your case and decided that you are
not entitled to relief as a State of New York
class member. The reason you are not entitled to relief is checked below.
(If we are also looking at your claim in connection with other New York
court cases, Stieberger,
Dixon, and/or Hill, you
will be getting separate notice regarding class membership in those
cases).

WHY YOU WILL NOT RECEIVE A NEW DECISION

YOU ARE NOT ENTITLED TO RELIEF AS A STATE OF NEW
YORK CLASS MEMBER BECAUSE:

[ ] You were not
issued a decision by the New York Disability Determination Service (DDS)
or the Office of Hearings and Appeals, for New York state, denying or
ceasing disability benefits between June 1, 1980, and February 2,
1994.

[ ] You did not
live in the state of New York at the time your claim for disability
benefits was finally denied or ceased.

[ ] Your claim did
not involve in any way the problems of heart disease or a heart
condition.

[ ] There were no
exercise test results in your file.

[ ] Your benefits
were denied or ceased for some reason other than your medical condition.
That reason was
_________________________________________________

_________________________________________________.

[ ] You have
received a subsequent fully favorable decision awarding you either title
II benefits based on the earliest date that you said you were disabled,
or title XVI disability benefits based on the earliest date on which you
applied. We will be in touch with you if you are owed any additional
retroactive benefits.

[ ] Other:___________________________________________.

We looked at the decisions(s) dated:

________________________________________________.

WE ARE NOT DECIDING WHETHER YOU ARE DISABLED

It is important for you to know that we are not deciding whether you are
or were disabled. We are deciding only that we will not make a new
decision, based on the exercise test case, on your past claim(s) for
disability benefits.

WHAT YOU MAY DO IF YOU DISAGREE WITH THIS DETERMINATION

You can write Legal Services for the Elderly, one of the offices
that represents the plaintiff class in this action. Their address is:

If you write or call to disagree with this determination, please do so
as soon as possible. If you tell us about your disagreement within 60 days
of the date of this notice, we will be able to review our records
concerning your case much more quickly. If you have specific information
regarding why you believe this determination is wrong, include that
information in your written disagreement. Also, be sure to include your
Social Security claim number, or a copy of this notice.

IF YOU HAVE A LEGAL REPRESENTATIVE OR WOULD LIKE TO OBTAIN ONE

If you have a legal representative, you should show this notice to that
person. If you would like to obtain a legal representative, you may
call:

Legal Services, which will refer you for free assistance if you
are financially eligible.

(a) In the New York city area call:

Legal Services for New
York city at (212) 431-7200

OR The Legal Aid
Society at (718) 722-3100.

(b) In the rest of New York State call:

Greater Upstate Law
Project, at 1-800-724-0490.

The National Organization of Social Security Claimant's
Representatives will refer you to an attorney who will charge a fee
for representation; call 1-800-431-2804.

YOU ALSO HAVE THE RIGHT TO FILE A NEW APPLICATION FOR BENEFITS. FILING
A NEW APPLICATION IS NOT THE SAME AS CHALLENGING OUR CLASS MEMBERSHIP
DECISION AND OBTAINING A NEW DECISION ON A PAST APPLICATION.

IF YOU HAVE OTHER QUESTIONS

You may also contact the Social Security Administration at 1-800-772-1213.
If you visit a Social Security office, please bring this letter with you.
It will help us answer your questions.

STATE OF NEW YORK CLASS
ACTIONNONCLASS MEMBER CASE65-DAY HOLD
NECESSARY

Claimant's Name__________________________________

SSN
__________________________________

The above-identified claimant has been determined to be a nonclass member.
Accordingly, we are retaining the attached claim folder(s) for 65 days
pending possible appeal by the claimant of the nonclass member
determination. We are maintaining the attached claim folder(s) at
(indicate location):

We are writing to let you know that we have decided you are entitled to a
new decision because of the State of New York v.
Sullivan case (the exercise test case).

We will contact you when we start reviewing your claim and ask you if you
have additional evidence. You will be told where to send any additional
evidence at that time.

If you have a legal representative, you should show this notice to that
person. If you would like to obtain a legal representative, you may
call:

Legal Services, which will refer you for free assistance if you
are financially eligible.

(a)In the New York City area call: Legal Services for New York
City at (212) 431-7200 or The Legal Aid Society at (212)
577-3300.

(b)In the rest of New York State call: Greater Upstate Law
Project, at 1-800-724-0490.

The National Organization of Social Security Claimant's
Representatives will refer you to an attorney who will charge a fee
for representation, call 1-800-431-2804.

If you have other questions, you may also contact the Social Security
Administration at 1-800-772-1213. If you visit a Social Security office,
please bring this letter with you. It will help us answer your
questions.

See the “NOTE” instruction following Part
V.E.2.; if the class member case is an active, current claim (as
opposed to an “inactive” class member claim that has been
“revived”), this notice of class membership needs to be
revised to reflect that the period at issue will be through the current
date (and not limited to some previously adjudicated period), unless
cessation or “date last insured” issues limit
consideration.]

The above-identified claimant is a State of New York class member. The attached State of New York prior claim folder was forwarded to this hearing office for possible consolidation with a current claim.

________

The claimant has objected to the proposed consolidation.

or

________

The ALJ has determined that the prior and current claims do not share a common issue and, therefore, should not be consolidated.

Accordingly, we are forwarding the attached alert and prior claim folder(s) to your location for any necessary State of New York readjudication action.

The above-identified claimant is a State of New York class member. The prior State of New York class member claim(s) associated with the current claim must be addressed. However, Appeals Council action on the current claim must be completed first. The nature of the Appeals Council action on the current claim will determine the type of action necessary on the prior claim(s). See TI 5-4-36, Part VI.C.3.a., for further information and instructions.

The above-identified claimant is a State of New York class member. The attached State of New York prior claim folder was forwarded to the Appeals Council because a current claim was pending before the Appeals Council. The Appeals Council has now completed its action on the current claim. After expiration of the retention period, forward the attached claim folders to:

[Servicing DDS Office's Name and Address if DDS jurisdiction]

or

[Servicing HO's Name and Address if OHA jurisdiction]

for State of New York readjudication. Please
refer to TI 5-4-36 for additional information and instructions.

The above-identified claimant is a State of New York class member. Readjudication of the claimant's prior (inactive) class member claim(s) is necessary.

NOTE:

The claimant has a current claim pending in court. However, the claimant
has opted not to have his court case remanded to the Secretary for
consolidation with the prior claim(s). The claimant's option decision with
respect to the court case does not affect his or her right as a
State of New York class member to readjudication
relief with respect to the attached prior claim(s).

Please refer to TI 5-4-36 for additional information and instructions.

The above-identified claimant is a State of New York class member. Court-ordered readjudication is OHA's jurisdiction in this case. Accordingly, we are forwarding the attached prior (inactive) claim folder(s) to your location for State of New York readjudication action. See TI 5-4-36 for further information and instructions.

You have been identified as a class member in the case of
State of New York v. Sullivan. Because common
issues exist, I will be consolidating your prior case with the case
concerning your application filed on (Insert
Date) . Thus, I will consider whether you have been under
a disability from ___________ to ___________.

You have the right to object to the consolidation of your case. If you
wish to do so, please contact my office at (Telephone
Number) as soon as possible.

This is a new POMS to implement the State of New
York decision in New York. In determining disability, all evidence is
considered at each step of the sequential evaluation process
(20 CFR §§
404.1520 and
416.920).
Adjudicators may not determine that a claim is denied (or ceased) based
exclusively on the results of an exercise test (ET). Adjudicators must
also give appropriate weight to treating source opinion, as well as other
signs, symptoms, and laboratory findings, in determining whether any
cardiac impairment is disabling.

Determinations at Step 2

Do not deny at step 2 of the sequential evaluation process exclusively on
the results of an ET, even where the ET suggests the capacity for heavy
work. All medical evidence must be considered, including all signs,
symptoms, laboratory findings, and treating source opinion evidence. The
combined effects of multiple impairments must also be considered.
Additionally, do not deny at step 2 when the claimant has any of the
following cardiac impairments:

Consider all medical evidence to determine if findings meet or equal a
listing. If a listing is not met, an equals assessment must be made.

You must not presume that ET results, or any other test results, are
entitled to primary or extra weight in determining disability in the
“equals” analysis. You may find an impairment of cardiac
origin equal to Listing 4.04, even where the file contains
“documentation of an acceptable treadmill exercise test”
(TET), as defined in 4.00G of the Listings, that does not meet the
criteria in Listing 4.04A. Depending upon the actual case record in a
given case, and the reliability, comprehensiveness and source of the
evidence, it may sometimes be appropriate to give more weight to certain
findings as opposed to other findings. For equals determinations, all
evidence must be considered.

The following list provides a number of examples of findings that can be
substituted for a missing finding(s) in equals determinations:

chest pain, discomfort, or tightness not precisely as described in 4.00E,
but which is likely to be of cardiac origin (e.g., chest discomfort or
tightness occurring with exposure to environmental stressors, such as
extremes of temperature, humidity, or fumes, or occurring with exposure to
psychological stress, or occurring during performance of an ET);

other symptoms (e.g., fatigue, dyspnea) when considered to be of cardiac
origin;

results of ETs other than TET (e.g., bicycle or arm ergometer);

results of arteriograms, echocardiograms, radionuclide ventriculography
(e.g., MUGA), or other studies of record whose findings demonstrate a
level of severity upon which a presumption of inability to work can be
made.

The listings are designed to screen in (i.e., allow) individuals who are
so severely disabled that they cannot do any gainful activity. The
following list provides a number of examples that can be used to screen in
(i.e., allow) as equal to the ischemic heart disease or congestive heart
failure listings individuals with listing-level impairments (i.e.,
individuals who are symptomatic on ordinary physical activity).

Cyanosis at rest documented by PO2 of 65 Torr or less at sea level.

Pulmonary hypertension secondary to heart disease with a mean pulmonary
arterial pressure elevated to 70 percent or more of the mean systemic
arterial pressure.

Cyanosis at a workload equivalent to 5 METs or less with PO2 of 65 Torr or
less at sea level.

Markedly symptomatic exercise intolerance at a workload equivalent to 5
METs or less with signs attributable to inadequate cerebral perfusion,
such as ataxic gait or mental confusion.

Symptoms of ischemia or heart failure, and findings on arteriograms,
echocardiograms, MUGA, or other studies of record demonstrating a
threshold level of coronary stenosis or ventricular dysfunction indicative
of listing-level impairment (even where there is a TET in file that does
not meet the criteria in Listing 4.04A).

Determinations at Steps 4 and 5 of the Sequential Evaluation Process

All evidence of record is considered in determining residual functional
capacity (RFC).

Note:

The TET provides an estimate of aerobic capacity for walking on a grade in
an environmentally controlled laboratory. Therefore, TET results do not
correlate with the ability to perform several other types of exertional
activities and do not provide an estimate of the ability to perform
throughout a workday activities required for gainful work in all possible
work environments. A TET (or other ECG modality) is not to be relied on as
the sole basis for rejecting a claim. You must consider other signs,
symptoms, laboratory findings, treating source opinions, environmental
restrictions, susceptibility to psychological stress, or other evidence
that may establish the claimant's disability.

symptoms, including frequency and character of pain, dyspnea, fatigue,
palpitations, syncope;

clinical course since onset of illness;

diagnosis;

treatment and results of treatment;

impact of the impairment on activities of daily living (e.g., self-care,
household, occupation, recreational, and social);

ability to perform work-related activity.

Physical examination findings (signs).

Results of laboratory tests available in evidence of record:

resting electrocardiogram (ECG);

chest x-ray;

TET or other ETs (e.g., bicycle or arm ergometer), including the
development of chest pain, fatigue, blood pressure changes, arrhythmias,
and other signs of ischemia that occur during the test. Consider all
signs, symptoms, and laboratory findings demonstrated during exercise
testing, irrespective of whether the test is completed;

Where disability is found to exist or to continue, i.e., where a fully
favorable decision is warranted, no decision rationale is needed.

Where disability is denied or ceased, state clearly the reasons for the
determination including, but not limited to:

what specific evidence was considered;

what weight was given to findings (e.g., exercise test results) which were
considered;

what weight was given to observations and opinions from the treating
sources;

which cardiovascular listings were evaluated and were found not met or
equaled;

what and how other relevant factors were considered, including what weight
was given to the claimant's subjective complaints (e.g., pain, fatigue),
or other complaints of functional restrictions.

Where the determination is partly unfavorable, explain the basis for
establishing a period of disability different than that alleged by the
claimant.

EVALUATING THE RESULTS OF TESTS

Policy

Consider results of a test in context with all symptoms, signs, and other
laboratory findings
(20 CFR
§§ 404.1508 and
416.908) and any
treating or consulting source opinion.

Coronary Arteriogram

Generally, the arteriogram is superior to the ET for establishing the
diagnosis of IHD and extent of coronary artery obstruction, while the ET
is superior to the arteriogram for estimating functional loss. However,
neither the results of an arteriogram, nor the results of an ET
necessarily correlates accurately with the true degree of a claimant's
functional loss. For this reason, all evidence must be considered.

Useful with clinical assessment to determine the feasibility of and need
for revascularization procedures.

Defines structural or anatomical abnormalities.

Myocardial Perfusion Scan (Thallium Stress Test)

Images regional myocardial blood flow.

May provide data useful for confirming ischemia.

May be useful for assessing severity (e.g., a positive stress thallium
study at a low workload indicates substantial restriction of exertional
capacity).

Detects abnormalities such as cardiomyopathies and intracardiac tumors or
masses.

May be useful for assessing severity (e.g., a fall in EF on exercise at a
low workload indicates substantial restrictions of exertional
capacity).

Ambulatory Electrocardio-gram Monitoring (e.g., Holter Monitor)

Provides a record to determine presence of dysrhythmias.

May provide suggestive evidence for ischemia.

Exercise Test

Markedly limited peak aerobic capacity (i.e., 5 METs or less) is useful
for the identification and allowance of individuals who are so
functionally impaired they cannot be expected to work.

A TET (or other exercise ECG modality) should be considered along with all
other evidence and treating source opinion in determining the severity of
the impairment(s). Adjudicators may not place exclusive weight on the
results of an ET in denying (or ceasing) a claim.

The ET is valuable for estimating maximal aerobic capacity in an
individual with a cardiovascular impairment. However, for a number of
reasons, there are limits to the use and reliability of the ET in
evaluating an individual's ability to perform work-related activities.
These include:

The ET has a substantial incidence of false negative results indicating no
IHD in some individuals who actually have this disorder. Furthermore, the
ET has a certain incidence of false positive results indicating ischemia
in some individuals who actually do not have this disorder.

Individuals with regional dyskinesia may demonstrate an elevation of the
ST segment that cancels the ischemic depression of the ST segment.

The TET provides an estimate of aerobic capacity for walking on a grade in
an environmentally controlled laboratory. Therefore, TET results do not
correlate with the ability to perform several other types of exertional
activities and do not provide an estimate of ability to perform throughout
a workday activities required for gainful work in all possible work
environments. A TET (or other ECG modality) is not to be relied on as the
sole basis for rejecting a claim. You must consider other signs, symptoms,
laboratory findings, treating source opinions, environmental
restrictions, susceptibility to psychological stress, or other evidence
that may establish the claimant's disability.